Often relationships involve pets. It can be difficult and emotional to determine who gets to keep the animal when the relationship has ended. While pets feel like a member of the family, they are considered property under Wisconsin law. The Wisconsin Supreme Court has expressed some discomfort with considering pets as mere property, stating that doing so “fails to describe the value human beings place upon the companionship that they enjoy with a [pet].” Nevertheless, pets are considered property under the law. Because of this when pets are involved in divorce, the court determines custody of a pet by using the marriage property division statute, Wis. Stat. § 767.61. But this property division statute is inapplicable to non-martial cohabitation. Therefore, determining custody of a pet in a non-martial cohabitational relationship can be ascertained the same way other personal property division is decided.
In Wisconsin, the seminal case handling property division following a cohabitational breakup is Watts v. Watts. In Watts, the couple lived together for 12 years, had 2 children together, and held themselves out as husband and wife though they were never married. When the relationship ended, the Wisconsin Supreme Court recognized “nonmarital cohabitation does not render every agreement between the cohabiting parties illegal and does not automatically preclude one of the parties from seeking judicial relief.” The court outlined several legal theories a plaintiff in this situation can use—first, the plaintiff can argue the couple had a contract to share equally the property accumulated during their relationship; second, the plaintiff can use the doctrine of unjust enrichment; third, the plaintiff can ask the court to create a constructive trust; and fourth, the plaintiff can rely on the doctrine of partition.
The Wisconsin Supreme Court decided Watts in 1987, and over time “unjust enrichment” has become the so-called “cohabitated divorce action.” Also called “quasi-contracts” or contracts implied by law rather than fact, unjust enrichment involves “obligations created by law to prevent injustice.” In Wisconsin, there are three elements that must be met to prove unjust enrichment. These are 1) A benefit conferring on the defendant by the plaintiff; 2) Appreciation or knowledge by the defendant of the benefit; and 3) Acceptance or retention of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit. In Watts, it would have been unfair to allow the defendant to keep everything while the plaintiff received nothing after all she had contributed to housekeeping, childrearing, and the defendant’s business.
Cohabitation alone does not give rise to an unjust enrichment claim. The claimant must establish there was a joint enterprise during the relationship in which both parties made financial contributions or services to the acquiring joint assets. This may or may not include joint financial accounts, joint tenancy in real estate, joint sharing of expenses, and even housekeeping and childrearing duties that allowed the other partner to acquire income and other property. In a pet ownership dispute, a judge may look to who bought the animal and paid various costs associated it with caring for it, such as purchasing food and paying veterinary bills, but will also consider who is the pet’s primary caretaker. For example, if Partner A paid the couple’s cat adoption fees, and generally takes the cat to the vet, buys the cat food and toys, etc., a judge may decide it would be unfair to allow Partner B to keep the cat in a breakup.
To avoid involving the legal system, a cohabitating non-married couple with a pet, or pets, could reach an agreement ahead of time regarding who gets to keep the animal(s), or come to a shared custody arrangement. Russell Law Offices, S.C. is here to help with your cohabitation questions.
Associate Attorney
Fort Atkinson
About Taylor is an Associate Attorney in the Fort Atkinson office. She received her JD from the University of Wisconsin Law School in 2022. During law school, Taylor worked at the Center for Patient Partnerships clinic and interned for the Wisconsin Supreme Court. Taylor’s interest in courtroom advocacy stems from her involvement as both a […]