Pitfalls of Couples Separating Who Were Never Married

When deciding not to get married, there are many considerations to reflect on in the event of a separation. It is vital to protect yourself and the assets you have gained while together. Without the “marital” part of property division, it can get complicated pretty quickly.

Subject to Marital Rules?

It depends on the situation. For example, if your spouse took on your last name, had joint bank accounts, and had a child together with my last name there may be some complications.

It does not have to embody a ‘common law' standpoint. The courts just may find this situation simply to be a matter of ‘fair and just' claims. Courts do not always view contracts between unmarried persons illegal. They also do not view every claim invalid for the same reason. In the case of Watts v. Watts 137 Wis. 2d 506, 405 N.W.2d 303 (1987),[1] the trial court initially rejected the claim of the plaintiff suggesting that she had failed to state a claim from which relief may have been granted. Upon certification, the supreme court reversed the trial court's decision.

Can He/She Get a Monetary Award If We Are Not Married?

It depends highly on the situation. However, one can never predict a courts final decision with 100% certainty when it comes to property division, but it is doubtful.

In the case of Lawlis v. Thompson 137 Wis. 2d 490, 405 N.W.2d 317 (1987),[2] it was found that, under the clause of ‘unjust enrichment' it would not be fair for the defendant to retain any of the money belonging to the plaintiff who held a large sum in the joint bank account.

Property Division?

This action would lie outside the realm of divorce and property division. You may be able to sue under an implied contract theory in regards to share in any increase in wealth, and unjust enrichment. You are also may be entitled to child support, depending on how the custody arrangement works out. As an example, the case of Watts v. Watts 152 Wis. 2d 370, 448 N.W.2d 292 (Ct. App. 1989) saw a similar situation. Ultimately, the mother was granted a claim of unjust enrichment, and was awarded $113,090.08.

Can the Court Enforce a Verbally Agreed Contract Between Two Non-Married Cohabitants?

Contracts can be won, but courts look at public policy regarding certain contracts. However, there might be a strong possibility you can make your former significant other reimburse you.

It was discussed in Watts v. Watts, 137 Wis.2d 506, 405 N.W.2d 303 (1987) that public policy does not necessarily preclude an unmarried cohabitant from asserting a contract claim against the other party to the cohabitation so long as the claim exists independently of the sexual relationship and is supported by separate consideration.


References: [1]Watts v. Watts, [2]Lawlis v. Thomson


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