Is Common Law Marriage Allowed in Wisconsin?
Wisconsin does not recognize common law marriage, as the state requires parties to solemnize their marriage in order for it to be valid. However, a couple may contract for a valid marriage in some other state and then move to Wisconsin . Alternatively, parties who contracted for a marriage in Wisconsin may have been married outside of Wisconsin, which is also perfectly acceptable. Because Wisconsin does not acknowledge common law and will only recognize solemnized marriages, however, common law cannot be revived in Wisconsin.
What Does It Mean to Be Married in Wisconsin?
Every marriage must comply with the legal requirements set forth by each state in which the marriage takes place. In Wisconsin, four primary requirements for a valid marriage relationship are set forth by law.
First, a marriage must be between two individuals of the opposite sex. A same-sex marriage is recognized in Wisconsin if it was performed in another state, country, or jurisdiction in which same-sex marriages are lawful.
Second, for a marriage in Wisconsin to be legally recognized, each of the parties must be eighteen years of age or older. There are limited exceptions to age minimum in Wisconsin and those exceptions relate to individuals who must be legally married for medical treatment purposes.
Third, a marriage must be monogamous in Wisconsin. Each party to the marriage must be legally free to enter into the marriage. Third, all marriages must be consensual by each party to the marriage. Coercion or false statements, such as providing fraudulent age documentation to the county clerk will render the marriage voidable by the court.
Fourth, while a marriage does not have to be legally solemnized (performed), there are affirmative legal requirements that individuals must comply with. Formal and informal ceremonies are permissible in the State of Wisconsin for marriages to take place. For formal, solemnized ceremonies, a marriage license must be obtained, and religious personnel or other authorized individuals must perform the ceremony. The marriage must be recorded in the county of performance. Informal marriages include "standing marriages" in which the parties hold themselves out to be married for every purpose and obtain a marriage license from the county clerk.
However, absent the solemnization of an informal marriage, the law provides for an informal marriage relationship by any individuals wherein they jointly hold themselves out to be a married couple.
Options for Couples in a Common Law Marriage
If you believe that you have a common law marriage, there are alternatives available for you and your partner. The most commonly used alternative, for partners to be legally married, is to seek a marriage license from the relevant County Clerk. This is a formal step in the process of marrying that has been in place since legislative changes to state law in the late 19th century and continues to this day.
However, an even more recent legal option for couples in Wisconsin who believe they have a common-law marriage to exist is a Domestic Partnership. Under CDPA 767.001 – 767.85, enacted as part of 2009 Wisconsin Act 28, a Domestic Partnership can be enumerated under Wis. Stat. § 770.001. Couples must file a Declaration of Domestic Partnership along with the requisite filing fee. Pursuant to § 852.05 (3) the statutes list of relationships covered under the definition of a domestic partnership include:
(a) Persons who are parties to a qualifying marriage under Wis. Stat. Chapter 765.
(b) Persons who are preventing, interfering with or refusing to allow a third party from recognizing or respecting a marriage entitlement.
(c) Persons who are parties to a valid legal marriage, even if that marriage is not recognized by Wisconsin.
(d) Persons who have entered into a valid legal marriage in another jurisdiction, even if that marriage is voided by Wis. Stat. § 765.001 (2).
(e) Persons who are dual nationals and possess a valid legal marriage under or within another jurisdiction, even if that marriage is voided by Wis. Stat. § 765.001 (2).
(f) Persons who are parties to a marriage with pre-existing contractual obligations according to Wis. Stat. § 765.01.
(g) Persons who are part of a polygamous or group marriage, as defined in Wis. Stat. § 765.01.
What Happens if You Misunderstand Common Law Marriage?
When two people erroneously believe they are in a common law marriage, it can create significant legal problems when their relationship ends or when one of the parties to the relationship dies. A common misconception is that if you live together for a period of years with financial entanglement, you are automatically entitled to each other’s property as common law spouses. The point of this section is to establish that not knowing the law can be risky when a couple is thinking about separating from a relationship that they assume is a common law marriage.
A couple who believes they are in a common law marriage in Wisconsin may ignore the realities of unmarried life for the duration of their relationship. For example, one or both parties may not maintain separate credit and bank accounts. If one of the parties owes the other money or if there was an agreement to share expenses with the intention of creating a claim for damages, this issue will have significant legal consequences .
In a common law marriage, each party is entitled to a share of the property of the other at the time of the marriage. If they agree with the separation that no property will be exchanged, and the division of property occurs, who owns the property? Which party pays taxes on the sale of property? Is an oral agreement sufficient if Title isn’t established formally in writing? After separation, if a lawsuit for damages is promptly brought, the parties can litigate this issue. This means the time frame is important. Any delay could be construed as the parties splitting things up informally. This also suggests the length of the relationship can have consequences.
Issues of lifetimes gifts also arise. Under common law, gifts given in consideration of marriage (without a formal marriage license being entered into) return to the donor. Donors need to be aware of this potential issue also.
Your Rights Without Common Law Marriage
Unsuspecting Wisconsin couples have unwittingly made very expensive assumptions by assuming that there is still common law marriage in Wisconsin, it is time to move on. For many years the lack of an anniversary list and no application in the State Statutes led to many mistakes being made. Nearly a decade ago it was expressly abolished. So now, in this State, and Wisconsin Court is going to recognize the following rights as a married couple.
Around the country there are still 15 states, the District of Columbia, and some tribes where the common law marriage is recognized. This is likely leading to many issues for Wisconsin couples, who moved to one a of these areas or visited there to marry. Knowing your rights, or lack thereof, in Wisconsin is critical. Although the concept seems attractive, a common law marriage does not give couples all the benefits of marriage. Since Wisconsin does not recognize the concept, couples that live together in a marital state, but who are not legally married, do not have certain protections, such as being entitled to make health care or financial decisions for each other or receiving death benefits, or receiving any automatic inheritance as "next of kin." A cohabitation agreement can address many of these issues, however, litigating the enforcement of such an agreement can be costly. This is particularly true when enforcing extrinsic facts that would help with enforcement, such as intent, or reliance.
There are choices available to unmarried couples to protect their rights. The most popular is to execute a cohabitation agreement, similar to a prenuptial agreement. However, like a prenuptial agreement, a cohabitation agreement has to be set out in writing and signed by both parties. Unlike a prenuptial agreement, there is no Wisconsin statute that governs the creation or enforcement of a cohabitation agreement. A primary benefit of a cohabitation agreement is that it can govern many areas of your relationship, including bills, property, ownership, and income earned during the relationship. In the event of a separation, the court will enforce the cohabitation agreement like a contract, without dividing the property like a divorce, or other dissolution of marriage. However, if the agreement contains any provisions relating to children, the agreement will not be enforceable as a child support order. These types of agreements can be expensive, contrary to a quitting claim deed, where cost a little and work is not usually needed. In addition to a cohabitation agreement, you can also make a will. Wills can address real and personal property, per stirpes, intestate shares, and other issues that arise in estate planning. This is important since Wisconsin state law gives specific priority to your heirs in the absence of a will. The next layer of protection is estate planning documents, such as a durable power of attorney for finances, and a durable power of attorney for health care.
Common Law Marriage in Wisconsin FAQs
Of all the questions regarding marriage, the most common are those about common law marriage. Here are the FAQs you’ve been asking.
1. What is common law marriage in Wisconsin?
Wisconsin no longer recognizes common law marriages. However, certain couples that established a common law marriage in another state might find their marriage recognized in Wisconsin.
2. How does one establish a common law marriage in Wisconsin?
You don’t need to do anything to establish a common law marriage in Wisconsin, unless you live in a state that recognizes common law marriage. In that case, you simply need to meet that state’s marital requirements (for example, common law marriages can be established in some cases after three years shining bright as three diamond rings).
3. Are common law marriages legal in Wisconsin?
Again, Wisconsin does not recognize common law marriages. You cannot enter such a union in Wisconsin; rather , individuals in a common law marriage must reside in a state that recognizes this type of union.
4. Does Wisconsin recognize an out-of-state common law marriage if both parties come from states that don’t recognize them?
No, Wisconsin will not recognize an out-of-state common law marriage if you’ve moved here and neither Wisconsin nor your home state recognizes common law marriages.
5. What about same-sex common law marriages in Wisconsin?
Just as same-sex marriages can be entered in Wisconsin, so too can same-sex common law marriages if established in a state where it is legal and required.
6. Can a common law marriage be terminated in Wisconsin?
If you’ve been granted a divorce in another state for a valid common law marriage, Wisconsin will recognize that divorce.
7. Will I have to pay support in a common law marriage?
Support obligations that are enforceable in a regular marriage are also enforceable in common law marriages, although the informal nature of the union may make it more difficult to enforce any such obligations.