Legal Consequences of “Living in Sin”
It used to be said that a man and woman who lived together, were intimately involved, but who were not married were “living in sin.” We would hate to think what such judgmental people said about same-sex partners. However, such an idiom is outdated now. Today the number of cohabitating unmarried partners is on the rise in the United States. In fact, according to the Pew Research Center, the number of adults in cohabitating unmarried relationships increased nearly thirty percent between 2007 and 2016.
The reasons for this rise could be varied. Some couples may feel the institution of marriage itself is outdated, that it perpetuates patriarchy, or perhaps because of the number of divorced individuals is also increasing, there is more reluctance on the part of some to get married. In fact, some couples may decide not to marry simply to avoid the legal consequences of sharing ownership of the property they have acquired over the years and will acquire in the future. However, if you assume that avoiding marriage with a life partner will avoid all property ownership issues, you may want to consult an attorney.
Wisconsin has outlawed common law marriage.
Wisconsin has outlawed common law marriage, or the idea that cohabitating couples will be considered legally married even if they did not complete a civil or religious ceremony or record their marriage with the state. That is the good news for cohabitating couples who intentionally avoid marriage for reasons of keeping their property theirs alone. Unfortunately, despite Wisconsin’s definitive ruling on common law marriage, there are other legal claims which arise from common law that may not allow long time cohabitants to simply go their separate ways if the relationship changes.
The court focuses first on the length of the cohabitant relationship
Of course, there is no easy answer. The legal consequences of each individual cohabitant relationship must be judged solely on the facts of that relationship. The biggest relevant fact a court will consider is the length of the cohabitant relationship. Other factors include whether the cohabitants shared any children together, the arrangement and spending of finances, the breadth of the assets accumulated and/or improved during the relationship, and any sacrifices one partner made to the benefit of the other partner or the relationship.
For instance, assume one partner owned the house the couple live in long before they met. That partner’s name is on the title and mortgage and that partner makes all the mortgage payments. The other partner lives there now and has for over fifteen or twenty years. During that time, both partners have contributed to major repairs and improvements of the house, including remodeling, new shingles for the roof, and landscaping. Then, the relationship falls apart. The partner who needs to move cannot take the improvements, and it would not necessarily be fair for the owner of the house to receive the full benefit of the increased value from the time, money, and labor contributed by the other partner. Hence, the seemingly simple cohabitation becomes legally complicated.
Therefore, depending on the unique circumstances of a cohabitant relationship, the former partners could tie each other up in court for years trying to untangle that relationship. If the partners own a business together or one of them is a part owner of a business it could get even more complicated as outlined in part one, A Divorce Could Cost your Business.
Cohabitation Agreement = The answer to all your problems?
However, there are still options for those in cohabitating relationships to protect their property. Much like their married counterparts can enter into Marital Property Agreements (commonly referred to as “pre-nups” and “post-nups”), cohabitating partners can enter into a similar agreement referred to as a Cohabitation Agreement. This agreement helps define what property belongs to whom and what the parties’ intentions are in the future for that property and newly acquired property.
Ironically, despite the fact Wisconsin abolished common law marriage, the above factors are some of the same factors a court analyzes when dividing property in a divorce. The key difference is that in a divorce action, the court starts with the presumption that everything is to be divided equally. In a cohabitant case, it is up to the parties to justify the value of their contributions.
Contact Nicholas C. Watt at Kramer, Elkins and Watt, LLC!
If you are in a cohabitant relationship and are concerned about protecting your property or feel trapped because of the money you have tied up with your (potentially soon to be ex-) partner, please contact Nicholas C. Watt at Kramer, Elkins & Watt, LLC to discuss legal options to recover that contribution,. We are glad to help!