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My Partner and I Never Married. Can Our Property be Divided?

My Partner and I Never Married. Can Our Property be Divided?

When an unmarried couple lives together, they often share their assets and liabilities. This may include keeping joint bank accounts, owning property, and assuming debts. If the relationship ends, it can raise ownership questions for both partners. Someone in this situation may be wondering: My partner and I never married. Can our property be divided?

Wisconsin and Common Law Marriage

In some states, when a couple lives together for a certain amount of time and identifies themselves to others as being each other's spouses, they will have what is referred to as a "common law marriage." Although they never formally wed, the law will recognize them as married. Wisconsin does not recognize common law marriage.

Wisconsin Domestic Partnership

Although Wisconsin does not have common law marriage, the law does recognize when two unmarried adults have an existing domestic partnership if they registered on the State Domestic Partnership Registry prior to April 1, 2018.

A Wisconsin domestic partnership requires the following:

  1. Each individual is at least 18 years old and can consent to the domestic partnership.
  2. Neither individual is married to or in a domestic partnership with another individual.
  3. The 2 individuals share a common residence.
  4. The 2 individuals are not nearer of kin to each other than 2nd cousins, whether of the whole or half blood or by adoption.
  5. The individuals are members of the same sex.

Domestic partnership registration provided certain rights to same-sex couples, including but not limited to inheritance, medical and hospital visitation, presumed joint tenancy by partners who lived together, applying spousal privilege, standing to sue for wrongful death actions.

In the past, those seeking to form a domestic partnership had to file and be added to the domestic partner registry. In 2017, Wisconsin passed legislation ending the registry as of April 1, 2018 as a result of the legalization of same-sex marriage. However, couples who registered as domestic partners before the April 1, 2018 deadline still have the benefits associated with domestic partnership status.

Unmarried Couples and Property

Wisconsin does not recognize domestic partnerships between opposite-sex couples, and, as indicated above, the registry is now closed. However, there are ways a cohabitating unmarried couple can protect their property and rights. If you are sharing a home with your boyfriend or girlfriend, it's essential to consult with a Milwaukee family law attorney to help you understand your options as an unmarried partner in Wisconsin.

Cohabitation Agreement

To avoid problems down the road, an unmarried Wisconsin couple can sign a cohabitation agreement when they decide to live together. The agreement can address how assets, property, and responsibilities will operate and be arranged should the relationship end.

Unjust Enrichment

In an unmarried couple ends their relationship, one partner may be able to pursue an unjust enrichment claim against the other on the basis that their ex unfairly retained an unfair amount of the assets and property they jointly acquired while living together. The court can evaluate the evidence of shared ownership and any pre-existing cohabitation agreements between the parties.

Although unmarried couples may not have the same rights as those who are married, they could have some choices and remedies if the relationship ends. The best way to learn more about your rights as an unmarried cohabitant is by consulting with an experienced Wisconsin attorney. Your counsel can help you evaluate your circumstances and options.  

Wisconsin Attorney and Mediator Karyn Youso of First Look Family Law is an attorney and Mediator with the experience you need to help you with your Wisconsin family law matter. If you live in Metro Milwaukee, Waukesha, or Brookfield and have questions about your rights as an unmarried partner, please contact us today and let us take a “first look” at your situation.