What is Common Law Marriage in Wisconsin?
Common law marriage is a concept that involves a couple being considered married without the need for a marriage license or ceremony. Under common law marriage, a husband and wife relationship is recognized in the absence of state-issued documentation, as long as certain requirements are fulfilled by the couple.
The requirements for common law marriage can vary from state to state, but generally, a couple must meet the following criteria:
- They must have had the legal capacity to contract (e.g., not employed predatory marriage practices or fraud to gain concessions).
- They must have lived together for a specified period .
- They must hold themselves out to the community as being married (i.e., they do not claim to be single or avoid filing a joint tax return each year).
- They must have the intent to be married.
If all these conditions are satisfied, a couple may be able to file for divorce or be protected under domestic violence laws.
As previously noted, common law marriages are not permitted in every state. In Wisconsin, there are currently no laws in place recognizing the concept of common law marriage. If a couple enters into a common law marriage in another state, however, it may be recognized in Wisconsin under certain circumstances.
Common Law Marriage — The Legal Side in Wisconsin
In Wisconsin, common law marriage is not recognized. Common law marriage is a legal union based upon the parties’ agreement to be married and their conduct as a married couple, but without any government official’s issuance of a marriage license and solemnization of the marriage. The parties must have the capacity to enter into a valid marriage. Wisconsin statutory law (Wisconsin Statute §765.03(2)) states that "No individual may marry unless at least one party complies with the requirements of subs. (1)." Thus, there can be no common law marriages without a pre-existing valid marriage under Wisconsin law.
Although there is a presumption of validity regarding a marriage when it is solemnized through the issuance of a marriage license, wherein the statute contemplates a rebuttable presumption of a valid marriage, Wisconsin law does not provide for a rebuttable presumption of a common law marriage. Rather, the statute addressing the marriage license process contemplates only a solemnization of a marriage, which means that the marriage is either valid or invalid – not that a non-marriage will be found to be a marriage after the fact. (see Wisconsin Statute §765.01-.30). When the solemnization requirements are not satisfied, then there is no valid marriage. Case law sets out the fact that the existence of a common law marriage is a question of fact (City of Milwaukee v. Schmidt, 2008 WI App 38, ¶12). However, the rebuttable presumption of a marriage does not apply to a situation that involves a common law marriage; rather, it applies to a situation where one party seeks to void or modify a previously solemnized marriage and the party claiming the marriage’s validity has the burden of establishing its validity (see In re Marriage of Petersen, 2003 WI App 108, ¶8). If no valid marriage exists, there is nothing to void or modify.
Alternatives to Common Law Marriage in Wisconsin
Alternative Options for Couples in Wisconsin Without a Formal Marriage
While Wisconsin does not recognize common law marriage, there are definite options available for couples wanting legal recognition without a traditional marriage. There are generally two options for couples in Wisconsin to opt for: domestic partnerships and cohabitation arrangements. Both options are fairly new, and each differs substantially, because a domestic partnership allows the parties to register as domestic partners and fulfill the criteria for same-sex marriage in Wisconsin, while a cohabitation arrangement is simply a contractual cohabitation agreement between two parties who share romantic sentiments and reside together. A cohabitation arrangement between two parties can present some of the answers to issues related to choice of law, and fancier variations of the cohabitation arrangement can be drafted to better protect the parties’ rights.
Legal Implications of Marriage for Couples in Wisconsin
For today’s blog, I wanted to discuss the legal implications for unmarried parties living in a relationship akin to marriage. As previously stated, Wisconsin does not recognize common law marriage, but that may change come June of 2018. Assuming things do not change, there are important legal implications for unmarried couples living together.
While you generally will not have the right to your partner’s property if he or she dies, i.e. no intestate inheritance rights, Wisconsin does have estate planning documentation available to provide for your partner after death. You can do a will which leaves a bequest to your partner outside your probate estate or give your partner a life estate in your real estate. These documents can both be recorded with the Register of Deeds and allow your partner to be vested with interests in your property upon your death.
Also, as always, you can go to the bank and have your partner listed as a joint owner on your bank accounts. However, beware that not all account holder arrangements carry the same benefits under a joint ownership designation. Be particularly wary of funds held in joint tenancy with right of survivorship.
In Wisconsin, there is a policy known as "Marital Property." This policy affects tax filings and divides property acquired during the marriage into marital property. Property acquired during marriage is presumed to be marital property. Because the property is categorized as marital, the division of marital property occurs at the time of divorce. This policy gives each spouse a right to half of all marital property acquired during the marriage . Since Wisconsin does not recognize common law marriage, Wisconsin marital property law does not apply to unmarried persons. Thus, parties to an unmarried relationship are not entitled to any of the benefits of marital property law.
In a divorce, each party is entitled to one half of the nonmarital property of the other spouse. Wisconsin does not categorize property as being a separate property or as being part of the marital estate before a divorce. In other words, this policy does not ensure future interests in property like a marital property designation ensures the same. As defined by Wisconsin Statutes section 766.31(6), nonmarital property includes:
(a) Property acquired by one spouse before the marriage.
(b) Property acquired by one spouse during the marriage by gift, bequest, devise or descent.
(c) Property acquired by a subsequent marriage.
(d) Property excluded from marital property by a valid agreement between the spouses.
(e) Income from nonmarital property received during the marriage.
As through the estate planning process discussed above, if an individual owns property before entering a relationship with another person, there is an option of including a life estate in the property deed or transferring the property to the individual’s child or another family member. Actual transfer and recording a transfer are two separate things. The transfer itself must occur and then be recorded. Otherwise, the title and ownership to the property remains vested in the individual.
When a child is born to parents who are not married, the father has no custody or visitation rights unless the father petitions the court to establish paternity prior to the child turning 18.
How to Preserve Your Rights Even Without Common Law Marriage
Despite Wisconsin’s prohibition of common law marriage, you can still protect your rights through the use of other legal instrumentalities. These include creating a joint tenancy for homes and other property, having wills drafted how you want your property to be disposed of, and powers of attorneys that allow one spouse to make decisions in the event of the death or incapacity of the other spouse.
If you are not married yet wish to designate your partner as your spouse for purposes of health insurance, beneficiaries on insurance policies and perhaps even estate taxes (which are rapidly changing in any event), you can achieve those purposes with a will. These may sound foreign to you but they are legitimate ways of ensuring that your wishes are noted and followed.
Conclusion: Navigating Marriage Laws in Wisconsin
As we have seen, most people commonly and easily assume that if they have been in a longstanding relationship, they are married. Such is not the law in Wisconsin, which only recognizes common law marriages if the criteria was met before 2014 and even then, the process is expensive and time consuming. If you believe your relationship fits the criteria for common law marriage, you should seek legal counsel to navigate the process, including obtaining a Court Order to prove your status as a married couple. On the other hand, if you and your partner are currently cohabitating , or considering living together in the future, proceed with caution! You and your partner may very well believe you are protected from entitlement division and spousal support issues if you separate in the future. However, because Wisconsin does not have a cohabitation statute (something many other states have), you should be cautious when making any joint purchases or holding out your partner as your spouse, because it could give rise to an argument by the other party that you are, in fact, married so that the laws governing spousal support and entitlement division apply.
