Wisconsin law does not recognize common law marriages, no matter how long partners have lived together. If the partners had children together, issues of child custody and child support can be handled through a paternity case. If there are property division matters to handle, that is a watts case handled by the civil courts. And domestic partnerships are entirely different, no longer used form of a legal arrangement.
In Wisconsin, it does not matter, under the law, how long you have been living with your partner if you are not married. You and your partner could be living together for 2 years, 50 years, or somewhere in between, but in Wisconsin, there is no length of cohabitation that would give you the same rights as a legally married couple should you and your partner break up. Only those who have been legally married go through the divorce process.
While these so-called “common law marriages” are not recognized in Wisconsin, you still have parental rights if you and your partner had children together. If you and your partner split, you may also have property rights that you can explore through a civil cause of action outside the family court when dividing assets such as the home you both lived in, bank accounts that were shared, or cars you both used.
Finally, it is important to consider that cohabitation also does not provide survivorship benefits in the event of your partner’s death. Only those couples who are legally married can recover benefits after a spouse’s passing unless there was an explicit provision in a will or estate plan. There are estate planning options for unmarried partners that provide additional legal benefits.
For couples who are cohabitating, divorce is not an available legal remedy. As an unmarried couple, if you or your domestic partner decide to end your relationship, family law attorneys can assist with custody and placement disputes for any shared children. However, any other disputes such as those over property are not handled in the Family Court system.
Child custody and placement disputes from cohabitating parents who are not legally married are handled through paternity cases. These cases establish a child support, placement, and legal custody arrangement for parties who have never been married. It is important to remember that this is a completely separate process from any property division that might occur in your case.
Couples who find themselves in a situation where they have been cohabitating but are not legally married (regardless of the length of time) will have to address any property division through civil court, not the family court system. So for this portion of the separation, you would need a civil attorney, not a family attorney.
These types of civil cases are known as Watts cases because they were first established in Watts v. Watts. In a Watts case, cohabitating parties may legally divide their property in civil court under contract law theories since they are not handled by the family court. So, if one partner moves into a house that the other partner owns and helps pay the mortgage, utilities, taxes, etc. then the partner who does not own the home may be able to recover those contributions upon separation.
Additionally, the legal theory of “unjust enrichment” describes a situation where one partner is not fairly compensated for their contribution to a relationship upon separation. For example, a stay-at-home parent might have a claim for unjust enrichment for contributing to the parties’ assets over the years of cohabitation. The stay-at-home parent could thus recover in civil court the “damages” which they are owed.
Unlike common law marriages which are not recognized in Wisconsin, domestic partnerships were a legal pathway that provided rights and remedies for same-sex couples.
In Wisconsin, a domestic partnership is a now outdated non-marital legal arrangement. To form a domestic partnership, couples were required to apply no later than April 1, 2018. The legal arrangement was established to provide insurance benefits to state employees or for same-sex relationships to create legal rights. Once granted the legal right to marry, these domestic partnerships for same-sex couples were abandoned, and new ones are no longer legally recognized in the State of Wisconsin.
If you are currently in a legal domestic partnership, the steps to dissolving it are quite simple. Either partner may file a Notice of Termination of Domestic Partnership with the county clerk’s office where the partnership is filed. If both parties sign, they must have their signatures notarized and then pay a fee. If only one partner signs, the signing party must fill out an affidavit explaining how the other partner was notified of the Notice of Termination.
If the domestic partnership was transitioned into a marriage, then it ends automatically at the time of the marriage. If this marriage has come to an end, then the same-sex couple can divorce the same as any other couple.
