Common Law Marriage in Wisconsin | Sterling Lawyers, LLC (2024)

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 circ*mstances 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 [2].

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 circ*mstance, 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 [3] in Wisconsin. The length of time you have been living with a domestic partner is irrelevant, yet, the myth of “common law” marriage persists.

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.