Common Law Marriage in Wisconsin
Common law marriage, also known as cohabitation, is not recognized in Wisconsin as a legal marriage. For this reason, those in a cohabitant relationship will need to file what is known as a Watts case  to legally divide property and protect their rights.
What is Common Law Marriage?
Common law marriage, as recognized in other states, is a relationship between two consenting adults who have lived together for a period of time. While it is not recognized in Wisconsin, the generally accepted requirements upheld in other states include an intention to eventually marry, and a specific amount of time that they must live together.
Common law relationships are generally recognized by friends, family, and the community to be informally married, though they have not had a formal ceremony or obtained a marriage certificate. These requirements vary by state and jurisdiction.
Is Common Law (Cohabitation) Marriage Legal in Wisconsin?
Common law marriage, or cohabitation, was abolished by Wisconsin state law in 1917 and as such is not recognized in Wisconsin. It does not matter how long the couple has lived together, and the circumstances surrounding the cohabitation do not matter either. A common law marriage is not considered a legal marriage.
Civil Unions and Domestic Partnership Statutes
A civil union, or civil partnership, is a legally recognized arrangement similar to marriage. A domestic partnership, or a de facto marriage, has similar criteria to cohabitation, as detailed in Wisconsin Statute 770.05 .
These are examples of legal relationships where an individual has signed a declaration of domestic partnership and filed with their local register of deeds. These alternatives to a formal marriage allow similar rights and recognition in the law for both opposite-sex and same-sex couples.
Cohabitation Law and Property Rights
Traditional marriage can provide structure and meaning to the lives of many happy couples. In the event of a divorce, it also provides the legal structure and meaning necessary to resolve disputes related to custody, property, and finances, which all naturally result from long-term cohabitation.
For couples who do not choose to marry, either through choice or circumstance, and instead opt to live together, this arrangement can be just as satisfying as a marriage. However, it can present a range of legal problems if the relationship does not end amicably.
While some states have laws regarding the division of property in long-standing relationships, Wisconsin is not among them. There are no common law marriages  in Wisconsin. The length of time you have been living with a domestic partner is irrelevant, yet, the myth of “common law” marriage persists.
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Unjust Enrichment Claims
Unjust enrichment is a term used to describe situations in which one partner is not fairly compensated for the effort that they contributed to the relationship, or any assets or property that the couple obtained while cohabiting.
These typically are the result of presumed agreements that were made by partners, either orally or through their actions, but not put into writing. One partner could raise claims that the other partner was attempting to keep more than their fair share of property or assets which were acquired during the course of the relationship and through the efforts of both partners.
Child Custody / Visitation
In the process of separating the lives of cohabiting partners with children involved, Wisconsin law requires that a plan be put in place to allow the children to have strong relationships with both parents as well as appropriate custody, placement, and child support considerations.
For married couples, the father has presumed paternity rights in the eyes of the courts, but this is not the case for parents who are unmarried with children. In order to obtain custodial rights, the father will have to establish paternity either through an acknowledgement of paternity signed by both the father and mother of the child, or through a genetic test.
There is no standard arrangement for determining child custody. The courts will make a decision on custody by taking into consideration what has been established in the cohabitation agreement, as well as what is in the best interest of the child.
Visitation, or placement, will then be determined by the courts based on the parenting plan or placement schedule that has been agreed upon by the parties. Go here to learn more about creating a placement schedule.
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While Wisconsin does not recognize common law marriage, there are options in place to ensure couples in a cohabitation lifestyle have the tools to safeguard their independent rights.
Protecting Yourself During a Separation
While cohabiting couples may share their life in a way that is similar to a married couple with shared bank accounts, property, and, in many cases, children, it is important to remember that they are not formally married. This means that cohabitating partners are not entitled to the same rights and protections as a married couple would receive in the event of a separation or the death of a partner.
It is important that couples discuss the distribution of any responsibilities and assets in the beginning of their relationship. These issues can be dictated and assigned using a cohabitation agreement form.
Cohabitation Agreement Form
A cohabitation agreement form  is a document created by two individuals who have decided to cohabitate together. This document is meant to provide security for each party by outlining the responsibilities of each person. This form should address how assets, property, and responsibilities regarding children and support payments should be divided should the relationship end, whether that be through a mutual separation or the death of a partner.
Filing a Watts Case to Divide Property
Watts cases are not legally designated as “common law”, but they provide Wisconsin residents with the tools necessary to resolve financial and property disputes that often arise when a long-term relationship ends. In some ways, Watts proceedings resemble traditional divorce actions. However, Watts cases are strictly civil actions and they do not cover custody or on-going support.
Although it doesn't allow un-wed couples the same degree of legal action as marriage, it can help bring closure and financial certainty.
Community Property State Definition
Wisconsin is a community property state, which means that everything acquired during a marriage will be divided equally. In cohabitation situations, a similar process would take place by filing a Watts case. After filing, the division of property would be decided through equitable distribution in an effort to avoid unjust enrichment.
Frequently Asked Questions
Is there a common law marriage in Wisconsin?
Common law marriages are not a legally recognized marriage in Wisconsin and as such are not afforded the same rights and protections as legally wedded spouses. Cohabitation is a similar relationship where two people live together for a period of time and hold themselves out to be married, though they have not had a formal marriage ceremony or signed a marriage certificate.
When was common law marriage abolished in Wisconsin?
Common Law marriage was abolished in Wisconsin in 1917. This means that individuals without a legal marriage license do not have the traditional legal protections associated with marriage. However, if unmarried partners are looking to protect each other in the event of death or illness, a will and estates attorney can assist. If a couple is separating after a long-term cohabitation, there is civil recourse known as a Watts case that parties can utilize to litigate issues regarding accumulated asset and debt division.
What qualifies as a domestic partnership in Wisconsin?
Domestic partnerships are defined by several characteristics of the relationship. Both partners involved must be consenting adults, at least 18 years old, and share a common residence. Additionally, they cannot be immediate family members, and they cannot be married or in a domestic partnership with another person.
What is palimony?
Palimony is the colloquial term used in reference to the division of assets and property at the conclusion of a common law marriage. Neither palimony nor common law marriages are recognized or implemented in Wisconsin. In order to divide financial assets and property, cohabiting partners would need to file a civil action known as a Watts case.
Are you legally married after living together for 7 years?
Common Law marriages are not recognized in Wisconsin, regardless of the length of the relationship. This can lead to some complications with couples that break up after a long period of time without ever being married. These cases are referred to as Watts cases in Wisconsin.
Watts cases will not address custody and placement issues related to any children born from the relationship, which means that a separate paternity action would need to be filed in order to initiate custody, placement, and support orders.
Can my common law partner kick me out?
Because Wisconsin does not recognize common law, couples are normally living in a residence that is owned or leased solely by one of the parties. This can make a breakup difficult for the party not listed as the owner or leaseholder and could potentially lead to eviction if the other party pursues that route.
In situations where the home was purchased while the couple was together, but only one party is listed on the mortgage, the nonlisted party may have grounds to file a civil action known as a Watts case which is a process by which non-married parties can litigate the division of assets and debts accrued during the length of the relationship.
Do unmarried couples have rights?
Unmarried or cohabitating couples do not have the same legal rights as married couples do, in the event of a break-up or death. Unmarried couples are not protected by divorce laws, therefore, unless there is property agreement in place, each person will retain the property they came into the relationship with in the event of a break up.
Executing a will is the best way to protect unmarried couples in the event that one or more of the individuals passes away. There is no presumption of inheritance for unmarried couples. In order to avoid a difficult probate issue, implementing a will is the best option.
Can an unmarried partner inherit?
Wisconsin does not recognize common law marriage. This means that unmarried couples do not have any of the protections afforded married couples in the event of a death. In order to protect yourself and your partner, unmarried couples need to execute a will. In the event that a will is not done, the assets will be passed down according to Wisconsin Intestate succession law. Intestate refers to those that pass away without a will in place.
Typically only assets that the individual owns alone are affected by intestate succession. Those assets include a home, cars, and other property. Other assets that are not affected by intestate succession include things such as life insurance policies, 401k, or real estate held by transfer on a death deed or beneficiary deed. Those types of assets will pass to the surviving co-owner or to the named beneficiary.
What states recognize common law marriages?
There is a common misconception that if a couple lives together for a period of time and holds themselves out to be married in front of their family, friends, and community, that they would be considered married in the eyes of the law throughout the country. This is not the case.
There are only a few states that recognize common law marriage to be legitimate, and even then the stipulations differ from state to state. Each of the following states and locations should be researched individually in order to determine the requirements they have for what qualifies as a common law marriage.
- Washington D.C.
- New Hampshire
- Rhode Island
- South Carolina
What does ‘common law partner' mean?
While a common law partner is not a title that holds any legal relevance in Wisconsin, it refers to a person who is in a cohabiting relationship with another person. These couples hold most characteristics of being married, such as shared property and living space, assets, and possibly children, however they have not signed a marriage certificate or held a formal marriage ceremony.
Does Wisconsin have common law marriage?
In Wisconsin, common law marriage is not a legal marriage and does not hold any legal standing. Partners in a cohabiting relationship can find their arrangement just as rewarding as a formal marriage and can hold many of the same characteristics of a formally married couple.
Oftentimes these partners hold themselves out to their community, friends, and family as being in a marriage, however, they have not signed a marriage certificate or had a formal wedding ceremony. These couples are not protected by the same rights as married couples, as their relationship is not legally binding.