LGBTQ+ family law in Colorado: the same statutes, a different history.

Same-sex divorce: the same statutes, the same court.

Since the Tenth Circuit’s decision in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), became final in October 2014, and nationally since Obergefell v. Hodges, 576 U.S. 644 (2015), a same-sex marriage in Colorado is a marriage, and it ends the way every marriage ends.

The petition, the response and the forms are the same packet, captioned for a marriage or a civil union; the filing fee is $260 for the petition and $146 for a response. The domicile rule, the ninety-one-day waiting period, the automatic temporary injunction, the financial disclosures, the equitable division of property, the maintenance guideline, the child support schedule and the best-interests test all apply without distinction. The process is on Divorce in Colorado. Colorado’s domestic violence definitions do not depend on anyone’s sex either; that law is on Domestic Violence & Divorce.

Where the cases differ. Four places, each a section below: the date the marriage began, when a civil union or a common-law marriage came first; a child whose second parent’s status rests on a presumption; the federal treatment of a civil union that never became a marriage; and records that have to be changed in the right order. Privacy is a fifth, for anyone not out to an employer or family; Privacy & Discretion covers what a court file shows and what is suppressed.

Federal recognition. Under the Respect for Marriage Act, for federal law “an individual shall be considered married if that individual’s marriage is between 2 individuals and is valid in the State where the marriage was entered into” (1 U.S.C. § 7(a)), and no one acting under color of state law may deny full faith and credit to another state’s marriage records on the basis of the spouses’ sex (28 U.S.C. § 1738C), a rule enforceable by a private lawsuit.

Civil unions: dissolved like a marriage, taxed like strangers.

Colorado’s Civil Union Act took effect May 1, 2013. Partners who later married each other merged the two; partners who did not have a relationship Colorado treats like a marriage and the federal tax code does not.

“The law of domestic relations, including but not limited to declaration of invalidity, legal separation, dissolution, child custody, allocation of parental responsibilities, parenting time, child support, property division, maintenance, and award of attorney fees, applies to civil unions” (C.R.S. § 14-15-107(4)). A civil union is dissolved in district court under the divorce article, with the same domicile requirement, wherever it was entered; anyone who enters one in Colorado consents to Colorado jurisdiction even after moving away; and the case may be filed where either partner lives or where the certificate was issued (C.R.S. § 14-15-115). A civil union, domestic partnership or substantially similar relationship legally created in another jurisdiction is treated as a Colorado civil union (C.R.S. § 14-15-116(2)).

Merger. “When parties who have entered into a civil union … subsequently marry, the effect is a merger of the two relationship statuses”; the civil union ends on the date of the marriage, and “no separate dissolution of the civil union is required” (C.R.S. § 14-15-118.5). One case ends both, and the civil-union years count: “any calculation of the duration of the marriage includes the time period during which the parties were in a civil union.”

A new civil union ends maintenance. Unless otherwise agreed in writing or expressly provided in the decree, maintenance ends on “the remarriage of or the establishment of a civil union by the party receiving maintenance” (C.R.S. § 14-10-122(2)(a)(III)), and a nonmodification clause alone does not keep it alive (In re Marriage of Cerrone, 2021 COA 116).

Civil union or marriage: where they differ.

Amendment J and the clean-up: what changed, and when.

Colorado’s written law lagged behind the courts for a decade. The constitution and the statute books caught up between 2024 and 2026.

Where the law stands in September 2026.

The voters repealed the constitutional ban, the legislature deleted the statutory one, and the common-law marriage clause was restored in gender-neutral words.

Amendment J passed on November 5, 2024, 1,982,200 to 1,099,228, and the repeal of the marriage ban in article II, section 31 of the Colorado Constitution took effect by the governor’s proclamation on December 17, 2024. SB 25-014 deleted the “one man and one woman” clause from the marriage statute, effective April 7, 2025, and in doing so dropped the clause preserving common-law marriages; HB 26-1218 restored it in gender-neutral form, effective May 5, 2026. The statute now reads:

“(1) A marriage is valid in this state if it is licensed, solemnized, and registered as provided in this part 1. (2) (Deleted by amendment, L. 2025). (3) This section does not repeal or invalidate any otherwise valid common law marriage: (a) Entered into prior to September 1, 2006; or (b) Entered into on or after September 1, 2006, and that complies with section 14-2-109.5.”

C.R.S. § 14-2-104 (2026)

The Supreme Court. The Court denied review in Davis v. Ermold, the former Kentucky county clerk’s petition asking it to revisit Obergefell, on November 10, 2025, and as of this update it has not agreed to hear any case on the question. If it ever did, Colorado’s constitution and statutes no longer contain a ban, and federal law recognizes a marriage that was valid where it was entered.

1. 2000 and 2006
   The bans.

   The marriage statute is amended to require a marriage “only between one man and one woman”; the constitutional ban follows in 2006.

2. May 1, 2013
   Civil unions.

   The Colorado Civil Union Act takes effect.

3. October 2014
   The ban falls in Colorado.

   The Supreme Court declines to review Kitchen v. Herbert, and the Tenth Circuit’s decision binds Colorado.

4. June 26, 2015
   Obergefell v. Hodges.

   Same-sex couples have a fundamental right to marry, nationwide.

5. June 8, 2016
   Merger.

   A civil union merges into a later marriage between the same partners.

6. January 11, 2021
   Hogsett, Yudkin, LaFleur.

   The Supreme Court restates the common-law marriage test and recognizes a same-sex common-law marriage formed before Obergefell.

7. 2021 and 2022
   Surrogacy and parentage.

   The Colorado Surrogacy Agreement Act (2021); gender-neutral parentage presumptions and Marlo’s Law confirmatory adoption (2022).

8. December 13, 2022
   The Respect for Marriage Act.

   Federal recognition of a marriage valid where it was entered.

9. 2024 to 2026
   The clean-up.

   Amendment J (effective December 17, 2024); SB 25-014 (April 7, 2025); HB 25-1312, the Kelly Loving Act (May 16, 2025); HB 26-1218 (May 5, 2026).

Marriages before the license: Hogsett and LaFleur.

Colorado recognizes common-law marriage, and since January 2021 it recognizes one between two people of the same sex formed before the state would license their marriage. For many couples together since before 2014, that is the most valuable fact in the divorce.

The test, restated for every couple.

A mutual agreement to enter the legal and social institution of marriage, followed by conduct showing it. The old factors still count, read in context.

In In re Marriage of Hogsett & Neale, 2021 CO 1, a case between two women, the Supreme Court held that “a common law marriage may be established by the mutual consent or agreement of the couple to enter the legal and social institution of marriage, followed by conduct manifesting that mutual agreement.” The question is whether the parties “mutually intended to enter a marital relationship—that is, to share a life together as spouses in a committed, intimate relationship of mutual support and mutual obligation,” and the agreement “need not take a particular form.” The court disavowed the old test’s “heteronormative terms like ‘husband and wife’” but kept the evidence: cohabitation, reputation as spouses, joint accounts, jointly owned property, joint tax returns, a shared surname, joint estate planning, and “symbols of commitment, such as ceremonies, anniversaries, cards, gifts.” On its facts it found no marriage, because only one partner intended one.

Discretion is not denial. “[P]articularly for same-sex partners, a couple’s choice not to broadly publicize the nature of their relationship may be explained by reasons other than their lack of mutual agreement to be married.” And in In re Estate of Yudkin, 2021 CO 2, separate surnames and separate finances no longer necessarily weigh against a marriage.

Before Obergefell. In re Marriage of LaFleur & Pyfer, 2021 CO 3, held that “a court may recognize a common law same-sex marriage entered in Colorado before the state recognized same-sex couples’ fundamental right to marry,” because restrictions held unconstitutional in Obergefell “cannot serve as an impediment.” The couple had exchanged vows and rings at a 2003 ceremony and received a “Certificate of Holy Union.” The court affirmed the marriage, but reversed the property division and maintenance award and sent them back for new findings. Since September 1, 2006, both partners must have been at least eighteen (C.R.S. § 14-2-109.5). The rest of the law is on Common Law Marriage.

When did the marriage begin? The length-of-marriage problem.

“Duration of marriage” means “the number of whole months, beginning from the first day of the month following the date of the parties’ marriage until the date of decree or the date of the hearing on disposition of property if such hearing precedes the date of the decree” (C.R.S. § 14-10-114(8)(b)). For a couple who could not marry until 2014, the date of the marriage is the case.

Why it matters. The maintenance guideline applies only to marriages of at least three years, and its suggested term is computed from the months of marriage (C.R.S. § 14-10-114(3)); duration is also a separate factor in the amount and term. Property owned before the marriage is separate, with only the increase in its value during the marriage divisible (C.R.S. § 14-10-113): a house bought in 2009 divides very differently under a marriage dated 2015 than under one dated 2004. The guideline itself is on Spousal Maintenance.

What is left for the unmarried years. Contract and equity. The Supreme Court held in Salzman v. Bachrach, 996 P.2d 1263 (Colo. 2000), that unmarried cohabitants “may legally contract with each other so long as sexual relations are merely incidental to the agreement,” so a deed, a partnership or an express agreement about property acquired before the marriage is enforced as what it is. A contribution to the other partner’s education or career can be argued under the maintenance factor for contributions to a party’s advancement (C.R.S. § 14-10-114(3)(c)(X)). Neither changes the count.

For a couple who could not marry until 2014, the date the marriage began is not a detail. It is the case.

Parentage: presumptions, donors and surrogacy.

Since 2022 Colorado’s parentage statutes are written in gender-neutral terms, and a child can have two legal parents of the same sex. How the second parent became a parent decides how secure that status is, in Colorado and elsewhere. The general law is on Parentage & Paternity.

The presumptions, and assisted reproduction.

A spouse or civil-union partner of the parent who gave birth is presumed a parent, and an intended parent who consented to assisted reproduction is a parent. A donor is not.

“A person is presumed to be the natural parent of a child if: (a) The person and the parent who gave birth to the child are or have been married to each other or are in a civil union … and the child is born during the marriage or civil union, within three hundred days after the marriage or civil union is terminated …; … (d) While the child is under the age of majority, the person receives the child into the person’s home and openly holds out the child as the person’s natural child” (C.R.S. § 19-4-105(1)). A presumption is rebutted only by clear and convincing evidence. An intended parent of a child conceived by assisted reproduction may sign a voluntary acknowledgment of parentage with the birth parent, and once filed it is equivalent to an adjudication (C.R.S. § 19-4-105(2)). The Court of Appeals held in In re Parental Responsibilities of A.R.L., 2013 COA 170, that “a child who is born during a same-sex relationship can have two legal parents of the same sex,” and that the holding-out presumption “applies with equal force to women.”

Assisted reproduction. “If, with the consent of another intended parent, an intended parent consents to become pregnant through an assisted reproductive procedure, the intended parent who does not give birth is treated in law as the natural parent of the child conceived,” the consent signed in writing by both, and “[a] donor is not a parent of a child conceived by means of an assisted reproductive procedure” (C.R.S. § 19-4-106(1)-(2)). Without a signed consent, parentage can still be proved by clear and convincing evidence of an oral agreement before conception that both would be parents (C.R.S. § 19-4-106(5)). Genetic tests cannot make a donor a parent or defeat an intended parent who consented (C.R.S. § 19-4-106(6.5)). If the marriage or civil union ends before the eggs, sperm or embryos are placed, the former partner is not a parent without consent in a record (C.R.S. § 19-4-106(7)(a)). None of it applies to a child conceived by intercourse.

Known donors and embryos. The Supreme Court held in In Interest of R.C., 775 P.2d 27 (Colo. 1989), that the old donor statute did not apply where a known donor and an unmarried recipient agreed at insemination that he would be the father. The statute was rewritten in 2022, and how much of R.C. survives is a question I analyze before anyone relies on a known-donor arrangement, in either direction. Frozen embryos in a divorce go first to the parties’ agreement and, without one, to a balancing of their interests (In re Marriage of Rooks, 2018 CO 85).

Surrogacy under the 2021 act.

Why adopt a child who is already yours: Marlo’s Law.

A presumption is Colorado law, and a birth certificate is a record. An adoption decree is a judgment, and every state must give a judgment full faith and credit. That difference is the reason to adopt.

The Supreme Court held in V.L. v. E.L., 577 U.S. 404 (2016), that a state must give full faith and credit to another state’s adoption decree, and in Pavan v. Smith, 582 U.S. 563 (2017), that same-sex spouses must be treated equally on birth certificates. But a birth certificate is not an adjudication, and a presumption can be tested in another state’s court. The decree closes the question everywhere.

Confirmatory adoption. Where a child was conceived through assisted reproduction and the parent who did not give birth is a parent or presumed parent, or the child has a presumed parent under the presumption statute, “the parents may complete an adoption of the child to affirm parentage,” both joining the petition (C.R.S. § 19-5-203.5(2)(a)). There is no notice to or consent from a donor, and no in-person hearing, home study, fingerprinting or minimum residency unless the court orders otherwise for good cause. For parents married or in a civil union at conception or birth, the court “shall grant the adoption and issue a decree of adoption within thirty days” of a complete petition. Non-residents may file here if the child was conceived or born in Colorado. The filing fee is $197.

No penalty for not adopting. A petition “must not be denied solely on the basis that the petitioner’s parentage is already presumed or legally recognized,” and failing to adopt “may not be considered as evidence” when presumptions conflict or in deciding a child’s best interests (C.R.S. § 19-5-203.5(4)). Adopting is insurance, not an admission.

Three adoptions, compared.

Names, gender markers, and transgender parents.

Colorado records can be changed without surgery, without newspaper publication and, for a minor, without a public court file. Federal documents are a separate question in 2026.

The records.

A transgender or gay parent in a custody case. The court “shall strive not to consider as a relevant factor information or recommendations that are biased, including bias regarding religion, gender, gender identity, gender expression, sexual orientation” and the other listed grounds (C.R.S. § 14-10-124(1.5)(a.5)). It “shall not consider conduct of a party that does not affect that party’s relationship to the child,” and it may not presume either parent better able to serve the child because of sex (C.R.S. § 14-10-124(2)-(3)). Child and family investigators and evaluators must strive to keep the same biases out of their reports (C.R.S. § 14-10-116.5(2)(b.7); C.R.S. § 14-10-127(7)(b.7)), and their training may not include discriminatory material (C.R.S. § 14-10-127.5(5)(b.5)). I know of no published Colorado appellate decision about a parent’s gender identity in a parenting case, so the statute is the argument, and it is a strong one. The custody law generally: Parental Responsibilities.

A child’s own gender identity. A disagreement between parents about a child’s medical care, including gender-affirming care, is a decision-making dispute, decided on the child’s best interests and, after the decree, under the standards on Modifying Custody. Two recent Supreme Court rulings are background, not Colorado law: United States v. Skrmetti, 605 U.S. 495 (2025), upheld Tennessee’s ban on gender-affirming care for minors, and an interim order in Mirabelli v. Bonta (March 2, 2026) concerned schools withholding a child’s gender identity from parents. Neither changes Colorado’s custody statute.

Six things people get wrong.

The questions LGBTQ+ clients ask first.

Related: Common Law Marriage  ·  Parentage & Paternity  ·  Stepparent Adoption  ·  Spousal Maintenance  ·  Parental Responsibilities