The Law Center handles agreements for all kinds of couples, whether they are married or unmarried, whether their estates are large or small, and whether they are of the same sex or different.

Each state in the United States of America has its own legislation regarding the vision of marital property. When entering a partnership, it is important to have a clear understanding of the specific regulations of your state, so that you can properly outline expectations for what is to come.

Is Wisconsin A Common Law State

Wisconsin common law provides a unique perspective on the recognition of assets in a marriage. For example, Wisconsin is one of many states that follow a “marital property” (also referred to as “community property”) system. This term essentially encompasses how a couple should identify and protect their individual income, social security benefits, assets, debts, and liabilities. The common law of Wisconsin goes into great detail outlining how these facets are owned and managed by spouses during their marriage. However, we know that not all marriages last. With that in mind, many couples feel more secure in entering a legal bind, knowing that if anything were to happen that caused them to separate, the division of their things is already set in place. The allocation of these things is valid upon the end of the marriage due to any circumstances, including death or divorce. Understanding the common law in Wisconsin is important for domestic partners or other cohabitating couples who may not be legally married at the time of their separation.

In fact, Wisconsin common law marriage is an attractive factor to many couples in our state. Because of the harsh rules that exist in other regions, many may ask, is common law marriage legal in Wisconsin? The answer to this question is yes! Though marriage, in present times, is often built on the foundation of love or romance, the practice historically was a legal union, usually solely for the benefit of reproduction and growth or finances or assets. In modern days: with the recognition of a variety of relationship dynamics, some pairs may simply choose to join their assets with another, without being married formally. For many, marriage has become a religious sacrament that is not appealing to all. With that in mind, Wisconsin is one of few states that will recognize what is known as a “common law marriage” even if there had been no formal civil union.

No matter how long a domestic partnership has lasted, family law in the state of Wisconsin has protections and guidelines to ensure security, and acutely define what will become of each individual’s belongings moving forward.

WI Common law recognizes the joint contributions both spouses make to a marriage, and provides that, but for some limited exceptions, income, assets, debts, and liabilities acquired during the marriage belong to both spouses as marital property. This is even true of assets that are solely titled in one spouse’s name, debts that are incurred by only one spouse, and income that is earned by one spouse through his or her employment.

Wisconsin law presumes that income, assets, debts, and liabilities acquired during a marriage are marital property unless it can be proven otherwise (in other words, unless these things can be proven to be the “individual property” of either spouse).

Under Wisconsin’s common laws, it is easy for either spouse’s individual property to inadvertently become marital property. If an asset is marital property, then each spouse is entitled to a portion of the asset (usually half); if a debt is marital debt, then a creditor may pursue not only the spouse that incurred the debt but also the non-incurring spouse, for repayment. These records will be held by the county clerk, with the ability to revisit them as necessary.



Cohabitation Agreements in Wisconsin

Marital property laws do not apply to unmarried couples. However, this does not mean that rights and obligations do not accrue between an unmarried couple who is residing together. In Watts v. Watts, the Wisconsin Supreme Court allowed the plaintiff to lay claim to some of the property that she and her former boyfriend had accumulated during their relationship.

Because of Watts, Wisconsin family law recognizes the rights and obligations that accrue between unmarried cohabitating partners during their relationship and allows for one or both partners to bring an action under contract law theories to recover property from a former partner.

For example, if one partner moves into a house owned by the other, and contributes financially to the household expenses (mortgage payments, property taxes, maintenance expenses, etc.), the partner who does not have title to the home may still have equitable ownership rights in the property. Given that, the non-title-holding partner may seek to recover his or her contributions to the home from the title-holding partner in the event of a break-up.

A Cohabitation Agreement sets forth the rights and obligations of a couple who are residing together in the same household, but are not yet (or may never become) married. A Cohabitation Agreement may, for example, set forth the partners’ agreements regarding ownership and management of assets and liabilities for debts, payment of living expenses, and division of assets and allocation of debts in a break-up.

Having a Cohabitation Agreement in place can reduce conflicts about these issues during a break-up, and can help prevent one partner from accruing an equitable ownership interest in the property of the other if that is not intended.

Photos on this page are copyrighted by Natural Intuition Photography, Madison, WI, All Rights Reserved, 2020.