Wisconsin Common Law Marriage

What Is Common-Law Marriage in Wisconsin?

Common-law marriage describes a form of informal marriage where the partners live together and regard themselves as “married” to friends and family members without solemnizing the union. Although common-law marriages are not legal in Wisconsin, they're considered valid in other states, such as Iowa, Washington, Montana, Kansas, Utah, and South Carolina. Some state laws require affidavits from the partner's family members or friends to validate a common-law marriage.

Couples often cite convenience and affordability as reasons for resorting to common-law marriages. Expected benefits in common-law marriages may include:

Survivorship rights;
Spousal support or alimony after a divorce or split;
Visitation rights at correctional facilities
Ability to make decisions for a mentally or physically-incapacitated spouse;

Note that there are no clear laws on common-law marriages in most states. Unlike traditional marriages where the governing state law is clear-cut, common-law marriages come with many grey areas that are disadvantageous to partners in the event of a divorce or split. Other disadvantages of common-law marriages include:

Possible loss of the right of survivorship;
Possible discrimination in child support payments and custody.

Does Wisconsin Recognize Common-Law Marriages?

Wisconsin does not recognize common-law marriages formed within the state's boundaries. The state abolished common-law marriages in 1917. In addition to this, Wisconsin abolished criminal sanctions; on common-law marriages formed within the state in 1983. In other words, couples are free to form a common-law marriage or cohabitation without the risk of being convicted.

Like most states, Wisconsin recognizes common-law marriages formed in other states where the marriage is permitted. Due to the Full Faith and Credit Clause, couples can maintain their common-law marriage status if they move to states that do not approve.

What Is Domestic Partnership in Wisconsin?

Generally, a domestic partnership is a union between two individuals in an exclusive and committed relationship. The 2009 Wisconsin Act 28 defines and categories domestic partnership under two sub-sections:

State employee domestic partnership
Same-sex domestic partnerships.

Under the Wisconsin Act 28, state employee partnerships are formed mainly by heterosexual couples, and it is only valid within the state's borders. Couples in a state employee partnership are eligible for most of the rights enjoyed by spouses in traditional or ceremonial marriages.

For instance, spouses in a state employee domestic partnership are eligible to receive retirement benefits and family life insurance benefits from the Department of Employee Trust Funds. However, state domestic partners can not terminate their relationship via conventional divorce proceedings. Partners who wish to dissolve a state domestic partnership must file an affidavit with the state employer stating the dissolution of the union. A partner can not form another domestic partnership until six months after the dissolution of the previous domestic partnership.

Under Act 28, same-sex domestic partnership is formed by same-sex couples. The same-sex domestic partnership was the best option for same-sex couples in Wisconsin before the Supreme Court legalized same-sex ceremonial marriages. Partners may apply for same-sex domestic partnerships in Wisconsin by obtaining a declaration for domestic partnership form from the County Clerk in the county in which they reside. They must have lived in the county at least 30 days before filing for a domestic partnership. Furthermore, intending couples can waive the five-day waiting period by paying an additional $10 fee.

What Is a Cohabitation Agreement in Wisconsin?

A cohabitation agreement in Wisconsin is a legally binding contract between two people cohabiting together. Since Wisconsin marital property law does not apply to unmarried partners, a cohabitation agreement helps partners lay claims to some of the properties accumulated during the duration of the union.

Wisconsin Courts recognize cohabitation agreements, and it is drafted to protect each party’s assets in the event of a split. Besides protecting each party’s assets, a cohabitation agreement may involve assigning different roles and responsibilities to each party. For example, the agreement might assign responsibilities for child support if there’s a child in the union. Also, it determines how couples can operate a separate or joint bank account and how to split finances during a break-up.

What Are the Requirements for a Common-Law Marriage in Wisconsin?

Wisconsin does not allow or recognize common-law marriages formed after 1917. Hence, there are no requirements for common-law marriages in the state. However, the state recognizes and validates informal marriages, such as domestic partnerships and cohabitation agreements. The Wisconsin Stat. chapter 770 defined a domestic partnership as consisting of two partners who fulfill the following requirements:

Each person is at least above 18 years old and mentally capable of consenting to a domestic partnership;
The intending couples are not currently married or in a domestic partnership with others;
Both partners must share a common residence. Both couples don’t need to hold the title to the residence. In addition, this requirement does not prevent either partner from having an additional residence. Furthermore, the law does not require the "shared residence" to be the primary residence of both partners;
Intending partners are not closer than second cousins in family ties;
Both partners have distinct roles and responsibilities in the relationship;

The Wisconsin Department of Health Services, via the Division of Public Health, is the custodian agency for domestic partnerships formed within the state. Hence, eligible couples can apply for domestic partnership by filling out the Wisconsin Declaration of Domestic Partnership Certificate. Couples must fill out their details, the type of current photo ID, photo ID number and date of issuance, and signature on the application form. The Wisconsin Department of Health Services accepts in-person or mail-in submission of completed application forms. Submit the completed form in-person or via mail to the address provided below:

State Records Vital Office
P.O. Box 309
Madison, WI 53701-0309

How Many Years Do You Have to Live Together for Common-Law Marriage in Wisconsin?

In Wisconsin, common-law marriages are invalid, irrespective of how long the couple has cohabited together. The state laws do not recognize any common-law marriage formed after it was abolished in 1917. Couples living together may apply for a cohabitation agreement or domestic partnership.

What Does It Mean to Be Legally Free to Marry in Wisconsin?

According to the Wis. Stat. § 765.02, only those who fulfill the following criteria are legally free to marry in Wisconsin:

Intending couples must be at least 18 years old to request a marriage license without consent from the parents or guardians;
Intending couples between the age of 16 and 18 can request a marriage license with consent from parents or legal guardians;

In contrast, persons below 16 years of age are ineligible to marry even with a parent's consent. In addition to this, couples who are nearer of kin than second cousins are not legally free to marry in Wisconsin.

What Is Informal Marriage in Wisconsin?

Generally, informal marriage refers to a contract or union between two persons living together without a marriage ceremony or registration at the state’s marriage registry. Wisconsin does not validate common-law marriages formed with the state. However, it recognizes common-law marriages formed in other states where the union is permitted.

How Do You Prove a Common-Law Marriage in Wisconsin?

In Wisconsin, couples can only prove the existence of a common-law marriage via a cohabitation agreement or other types of contracts notarized in front of a notary public. In addition to this, couples can prove common-law marriage through the following evidence:

Documents showing the period when the couple formed the union;
Proof that the marriage was validated by the common-law-approving state or region;
Employment or insurance benefit records detailing the partner’s name as a family member and beneficiary;
School documents containing the names of both partners as parents of their ward;
Birth certificates listing both common-law partners as parents of their ward
Joint bank accounts or credit or debit cards in the name of both partners;

Third-party websites provide an alternative to obtaining public vital records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

The full name of both spouses ((include first, middle, and last names)
The date the marriage occurred (month, date and year)
The location where the marriage occurred (city and county)

How Do You Prove a Common-Law Marriage After Death?

Widowed partners must prove the existence of a common-law marriage through notarised contracts supporting the claim. Since Wisconsin does not recognize common-law marriages, widowed spouses can protect their spousal rights via the following methods:

Using the Watts Case: The Watts Case helps spouses to resolve peppery and financial issues that arise in the event of a split or a partner's death.
A written agreement: Wisconsin contract laws recognize and validate written agreements signed by both parties.

Third-party websites may provide a convenient solution to obtaining marriage-related public records. These non-governmental platforms come with intuitive search tools that help simplify the process of accessing single or multiple records. However, record availability on third-party sites tends to vary because they’re independent of government sources. To obtain public marriage records, requesters may need to provide:

The full name of both spouses (include first, middle, and last names) The date the marriage occurred (month, date, and year) The location where the marriage occurred (city and county)

Do Common-Law Marriages Require a Divorce?

Common-law marriages in Wisconsin do not require a divorce. Only couples in a ceremonial or traditional marriage can request a divorce from the respective custodian agency in the state. According to the Wis. Stat. section 770.05, couples in an informal marriage must complete a notice-of-termination form to terminate their relationship. The couple must file the termination form with the county clerk responsible for issuing the declaration of domestic partnership form.

Does a Common-Law Wife Have Rights in Wisconsin?

Under Wisconsin Statutes, a common-law wife has a few rights similar to a legally married wife. For instance, during a split or termination of the union, a common-law wife can file for unjust enrichment claims in situations where she is not fairly compensated for her contributions in the relationship. In addition to this, common-law wives can file a Watts case to get a fair share of properties and finances accumulated by the couple during the relationship. Common-law wives can also claim health insurance benefits, visitors' right to a healthcare facility or correctional center to visit incarcerated partners.

Can a Common-Law Wife Collect Social Security Benefits in Wisconsin?

Wives married under common law in Wisconsin are not eligible to receive social benefits. Common-law couples must fit the following criteria to be eligible for social security benefits such as survivor and spousal benefits:

The couple started the marriage in a state where common-law marriage is legal;
The couple can prove to the Social Security Department that they are in a common-law marriage.

Common-law couples who meet the validity requirements must file for social security. First, both spouses must fill out a Form SSA-754 (Statement of Marriage Relationship) in conjunction with an affirmation from a blood relative (Form SSA-753).

Are Common-Law Wives Entitled to Half in Wisconsin?

Common-law wives are not entitled to half of their partner's properties or assets in the event of a split or termination of the union. The law only allows common-law wives to get half or a portion of the accumulated property if there's a written and notarized document to back the claim. Additionally, common-law wives are entitled to a fair share of the property if their name is on the deed or title of the property.

How Do You Get a Common-Law Marriage Affidavit in Wisconsin

Common-law partners can not request or obtain common-law marriage affidavits in Wisconsin. Since the state does not recognize common-law marriages, common-law partners can only get an affidavit in states where the union is valid. Although each common-law-approving state has different rules for obtaining common-law marriage affidavits, all common-law marriage affidavit must contain the following data:

The state and county where the couple formed the union;
The date when the couple decided to enter into a common-law marriage;
Proof that both parties are above the minimum legal age.

When Did Common-Law Marriage End in Wisconsin?

Wisconsin abolished all common-law marriages formed after 1917. Therefore, any common-law marriage formed after 1917 is invalid.

What Is Considered Common-Law Marriage in Wisconsin?

Common-law marriage does not exist under Wisconsin state laws. Marriage in Wisconsin is the solemnization of a union between two consenting individuals above the legal age.

What Is the Difference Between Common-Law Marriage and Domestic Partnership?

Unlike common-law marriage, domestic partnerships formed in Wisconsin are recognized and upheld by different state laws. Couples in a domestic partnership are eligible for a majority of the rights enjoyed by spouses in traditional or ceremonial marriages. However, domestic partnerships formed in Ohio are only valid within the state's geographical area, while common-law marriages are recognized in all states.

Does the Federal Government Recognize Wisconsin Common-Law Marriage?

The Federal Government will only recognize common-law marriages in Wisconsin if the union was formed in common-law-approving states. Only nine states recognize and validate common-law marriages. The common-law-approving states include Iowa, New Hampshire, Montana, Texas, Kansas, South Carolina, Colorado, Utah, and Rhode Island.