When a couple live together without the benefit of being married, in a cohabitation, non-marital relationship, they are not afforded the protection of the family code, under Chapter 767 of the Wisconsin Statutes. Wisconsin does not recognize common law marriages. This means that you cannot receive spousal support, and there is no presumptive 50/50 property division. Rather, in the event of the breakup of the relationship where property has been acquired together or accrued financial obligations, how the estate gets divided is determined simply on equitable grounds and theories of unjust enrichment. The leading case in Wisconsin for non-marital relationships is Watts v. Watts, 137 Wis. 2d 506. In Watts, the parties were living together in a “marital-like” relationship, actually holding themselves out to the public as husband and wife. The parties even had two children together. The plaintiff (a woman), stayed at home and did the home making and helped out in the defendant (a man’s) office. She did not receive any compensation. The woman sued claiming that her former partner indicated to her both orally and through his actions that he considered her to be his wife and that she would share equally in their increased wealth. There were several legal theories floated about in the case at the trial court level:

1. That the relationship with the defendant and their children constituted a family and entitled her to bring an action for presumed property division under the family code. This was rejected. People who are not married to each other are not entitled to spousal support or presumed equal property division.
2. Due to the defendant’s action and words, he should be “estopped” from arguing the lack of a legal marriage as a defense against the plaintiff’s claim for property rights. The court concluded that “marriage by estoppel” should be applied in this case because the legislature did not intend the family code to control couples who are not married.
3. The couple had a contract to share equally in the property accumulated during the relationship, which the defendant breached. The trial court was not persuaded by the defendant that enforcing an express or implied contract would violate the Wisconsin family code.
4. The plaintiff also argued an “unjust enrichment” theory. The plaintiff asserted that the defendant accepted and retained the benefit of services she provided to him and the family knowing that there was an expectation on her part to share equally in the property and that it would be unfair for the defendant to retain all of the property without sharing with her.

The court on appeal determined that the plaintiff had met her burden of proof and had plead all the facts that are necessary to assert a claim for damages. Under the Watts’ holding, unmarried cohabitants may raise claims based upon unjust enrichment following the cessation of their relationships where one of the parties attempts to retain an unfair amount of the property acquired during the relationship through the efforts and labors of both parties.

Have you lived someone out of wedlock and know the relationship is ending? Contact one of our family  attorneys to explain the law on equitable principles on how to divide up your estate and money.