What is a common law marriage?
Common law marriage is a legally recognized union between two people. It can be confusing to learn about or try to understand if only some states in the U.S. legally recognize them. Common law marriages stem from England, where the ecclesiastical courts would grant legal marital status to those who met the following requirements: The parties hold themselves out to be married and intend to be married, and they’ve cohabitated at a time when such relationships are permitted by law .
Most jurisdictions that recognize common law relationships require that the parties live together for an indefinite period and demonstrate the capacity to consent to a marriage coming from mutual assent. A third required element is that the parties must hold themselves out to the community as spouses.
Does Wisconsin recognize common law marriage?
The State of Wisconsin does recognize common law marriages which were entered into before January 1, 2016. However, the state no longer recognizes new common law marriages after this date. By law, a common law marriage is only legally recognized in Wisconsin after a validation process is carried out. To be eligible for validation, the marriage must fulfill certain criteria, such as being reciprocally based on consent. In Wisconsin, this process involves a court petition. Either party can file this type of action seeking a judicial declaration of a common law marriage.
The exception to automatically validating a common law marriage based on its terms after January 1, 2016 is if a party can show:
Essentially, any party seeking to validate a common law marriage after January 1, 2016 must prove their case to the court, with clear and convincing evidence. Otherwise, the court will reject the petition to validate the common law marriage. While there are alternatives to common law marriage, such as marriage by proxy and domestic partnership, these are not generally recognized by the state.
Common Law Marriage Alternatives in Wisconsin
Because Wisconsin does not recognize common law marriage for the purposes of dissolving a marriage, the question of legal alternatives is a likely concern for couples living in Wisconsin. The simplest alternative to common law marriage is making your relationship legal, using the traditional marriage element requirements. Couples can also consider entering into a cohabitation agreement, which expands on the rights of people living together but not married and adopting the legal responsibilities of taking care of and supporting each other, including financial and medical support. Partners can also file a Declaration of Domestic Partnership, which creates a limited series of rights and responsibilities between partners not typically included in a traditional marriage license.
When It Is Legal for an Unmarried Couple to Live Together in Wisconsin
Legal Implications for Unmarried Couples
Provided that you don’t have a premarital agreement, the law in Wisconsin considers you and your partner separate entities. This means that you will not be entitled to many of the legal benefits of marriage, but you will also not be subject to the same requirements and restrictions as married couples.
Property Rights
In Wisconsin, it is very important to have a clear record of ownership of your property. Generally speaking, jointly owned property (such as bank accounts and real estate) automatically becomes divided into equal halves in the absence of a specific agreement to the contrary. This means that if you live in property owned by your partner when you separate or divorce, your partner technically has no obligation to allow you to stay there, nor do you have any right to remain on the property or remove anything that belongs to you or your children.
Inheritance
There is no provision for leaving your assets to your partner in the case of your unfortunate death. If you want to leave your property to your partner, you must clearly indicate this in a will. In the absence of anything indicating your wishes, Wisconsin law entitles several relatives to your estate in succession, including your spouse, children, parents and siblings.
Child Custody and Support
Parents are responsible for supporting and maintaining their children regardless of whether they are married or not. However, unmarried parents have additional steps and legal protections that marriages parents are not subject to. If parents are not married, the mother becomes the sole custodian upon the child’s birth until paternity is legally established. Only then does custodial and parenting time agreements need to be established and shared with the courts.
It is not mandatory for Wisconsin courts to award joint custody of a child to an unmarried couple in any situation. Wisconsin courts will only award it when doing so is deemed to be in the best interest of the child.
Getting Legal Protections for Couples
In light of the limited recognition that Wisconsin law offers to unmarried couples and the common law marriages of Wisconsin only existing between ten and twenty years depending upon the laws of the states in which they were entered into, unmarried couples should take precautions to protect their individual and financial rights. One method is to avoid the creation of any presumption of a marriage or common law marriage under the laws of Wisconsin. This is accomplished by drafting and executing a formal contract with your spouse in which you expressly disclaim any intent to create a marital relationship and assure each other that neither of you have the intent to treat the other as a husband or wife. To go one step further, parties may wish to enter into such a contract as well as formalize their relationship further by recording their contract in the local office of the Register of Deeds. Each party would have to sign the contract in front of a notary public, and then have it recorded. There is no statutory authority for this formalization process , but there is case law to uphold such a contract and confirm its validity.
Parties should carefully draft their agreements as contracts. Parties may wish to draft the contract so as to address all of the issues that would be addressed in a marital relationship. Capital asset distribution, tax distribution, family residences, bank accounts, recordation of homestead interests, payment of debts, etc. may all be addressed in the agreement. The important thing is that the agreement best depicts what is really the factual intent of the parties is. The agreement may also be amended at any time such parties decide to change their minds. However, what an agreement will not do is allow the parties to avail themselves of the common law marriage doctrine as set forth above. Again, the burden is upon the party claiming a common law marriage to prove the common law requirements, and, as discussed above, the proof must be by clear and convincing evidence. Therefore, long-term cohabitation in and of itself will not suffice. Likewise, holding oneself out to another as a spouse or telling the public that you are married will not suffice. The agreement is always helpful to have. It serves as a shield against possible attempts to assert a common law marriage and embolden a claimant that wishes to assert such a claim.
The Lowdown On Common Law Marriages: Advice for Wisconsin Couples
When couples come to us to seek information on whether to establish a common law marriage-like relationship, how to remove themselves from an existing common law marriage, or they simply want to know their legal options, we always take them through the following steps:
1. Seek professional guidance:
We highly recommend that you seek the counsel of an experienced Wisconsin family law attorney. Do not rely on your own research or what you hear from non-legal professionals. For example, after Googling "common law marriage" you may hear from an acquaintance that you have to live together for seven years in Wisconsin. This is not true. This is also not true in other states, although the length of time required may vary. You may have heard that you have to file taxes jointly, but that is not a requirement of a common law marriage. Again, the requirements for this type of relationship are unique to every state, and you need to get the correct information from a reliable source.
2. Consider obtaining a written cohabitation agreement:
Even though there is currently no common law marriage in Wisconsin, it is helpful to obtain a written agreement outlining the terms of the relationship, such as the division of property in the event of a breakup, the sharing of expenses and debts, allocation of income tax returns, etc. Obtaining legal advice before you enter into a cohabitation relationship is a very wise decision. We have seen clients in front of the court in litigation over these terms after the breakdown of the relationship. Having an agreement created from the start can avoid future litigation and provide certainty for both partners.
3. Meet with a financial planner:
Another good idea is for an individual or couple who wishes to establish a long-term committed relationship to meet with a financial planner. Many people have never met with a financial planner. Many couples do not appreciate how vulnerable certain assets are if the relationship ends. For instance:
4. Get a will:
If you are living with someone and wish to remain with them indefinitely, you need estate planning to provide for each other. An estate plan will provide for the unexpected. If you do not have an estate plan, and you pass without one, the courts will make decisions for you. In Wisconsin, when you pass without an estate plan, your assets will pass according to statutes. Living together does not give your partner inheritance rights, title to property or any authority. Don’t leave your estate distribution, your property or your children’s well-being to chance.
5. Consider a Domestic Partnership:
A domestic partnership is another term to define a same-sex, or in some areas, opposite-sex couple in a long-term committed relationship. This is different from marriage. It is not a common law marriage. Domestic partnership has legal rights. However, there are many differences from a marriage concept.
In Conclusion: Relationships In Wisconsin
As you can see, understanding and knowing the legal statutes and requirements will help obtain a better understanding about relationship status in Wisconsin. Engaging in a relationship with someone else no longer means running the risk of being married at the end of it . But this may not be the case if the parties have decided to enter into a marriage-type arrangement. The only way to truly understand what legal relationship you are involved in is to seek legal advice. Understanding your situation will assist you in many ways.