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But Who Gets the Dog? Cohabitation and Pet Ownership

by Taylor Lovett, Associate Attorney

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.

Rental Considerations for Cohabitating Couples

by Nathan Russell, Founder and Managing Attorney

When an unmarried couple shares a rented residence in Wisconsin, they may face a number of challenges in untangling their respective rights and obligations when they break up. The time that each individual spent at the dwelling – whether it’s an apartment, condominium, house, or cabin in the woods – may very well have constituted a form of a residential tenancy, each with their own rights to sort out.

When a cohabitating, unmarried couple splits up, among their initial rental considerations is determining the impact of the departure of either or both of them from the rented premises. The first step in working through this dilemma involves a review of the terms of the lease agreement. Not only would a lease agreement generally contain basic terms about the named parties, the rent and security deposit, the start and end date of the tenancy, and so on, but it may also contain terms surrounding more specific aspects of the tenancy, such as specifying how to proceed when a renter intends to terminate the agreement and vacate the premises prior to the expiration date. It may be the case that there is no written lease or that one of the residents is not named on the lease as a tenant. In such circumstances, either or both of the residents may still have developed tenancies at the premises, just in other forms, such as through a periodic tenancy or tenancy at will.

Other considerations involve the sublet or re-rental of the premises, the condition of the premises and security deposit, and the possibility of a lease termination agreement. If the lease describes procedures to sublet or re-rent the premises, the residents may find it worthwhile to communicate with the landlord about how to proceed. For example, even if the residents were able to procure new subletters, renters, or roommates to replace one or both of them under the lease, they may still need to obtain the landlord’s prior approval before putting that plan into action. If one of the cohabitants remains while the other leaves, one of them may wish to ask the landlord if they would be amenable to conducting a move-out walkthrough as, or immediately after, the former resident departs, to log the condition of the premises at that time (though the landlord may conduct one regardless, depending on the circumstances). Lastly, the landlord may offer that the departing renter/s pay a lump sum in exchange for an early termination of the lease. The parties should carefully weigh the costs and benefits of such an agreement based on their circumstances.

If the renter who remains (or hopes to remain) at the rented premises will be unable to pay their rent and other housing expenses following their former partner’s departure, they may want to act sooner rather than later, since the failure to pay timely rent could result in the accrual of late fees and an eviction being filed against them. In addition to efforts made to procure new subletters or roommates, such a renter may also consider requesting that the landlord allow them to move to a lower-cost rental unit, if the landlord or property is of a large enough scale to accommodate that request. Such a renter may also consider contacting local rental assistance programs to see if they would qualify for any financial assistance in meeting upcoming payment obligations.

Cohabitation involving a rented residence can present an added layer of difficulty when partners go their separate ways. Reach out to Russell Law Offices to assist you in navigating this legal landscape so you don’t have to go through it alone.

by Justin Brewer, Associate Attorney

Who Gets the Car? Cohabitation Breakups and Car Ownership

Cohabitation has become an increasingly popular relationship arrangement in Wisconsin. Unlike married couples, who have access to the divorce process, unmarried cohabitators have limited legal options for divvying up their property after a breakup.

Cars are some of the most important and valuable pieces of personal property that need to be divided after a break up. Cars are different from other types of property in that they come with ownership paperwork – there is a title to the car which shows who owns it, and what liens are attached to it. What happens to your car after a cohabitation breakup will depend heavily on who is named on the car’s title, and whether or not there are still outstanding car loans.

Who owns the car?

The first thing to figure out is who legally owns the car. Is it titled in one partner’s name, or both?

Sole Ownership:

If the car is titled in only one of the partner’s names, then legally they are the owner, and they get to keep the car after a cohabitation break up. Remember, marital property laws do not apply to non-married cohabitators! If the property is titled in someone’s name, it belongs to them.

However, if one partner helped contribute towards acquiring, or paying for the car, even if they aren’t on the title, they can make an unjust enrichment claim if the other partner decides to keep the car. Unjust enrichment occurs when a person receives a benefit, and accepts or keeps the benefit without paying for it, in a manner that would be unjust. In the case of car ownership, if one partner is the sole-owner of the car, and keeps the car, the other partner may have an unjust enrichment claim if they contributed to the acquisition or maintenance of the car. This would allow a partner who helped financed or improve the car get paid for their contributions to the car.

Joint Ownership

If the car is titled in both partners’ names, then the ownership question becomes messier. In these cases, the partners need to come to an agreement as to who will take full ownership after the breakup. The best option is for one partner to buy the other out of their half interest in the car, or for both partners to sell the car to a third party and split the proceeds.

However, if the couple cannot agree to a buyout, they can turn to a judicial action called a partition. In a partition action, the court will order the sale of the car at a public auction, and the partners will split the proceeds. This is the nuclear option for disagreeing couples – the car is usually sold for less than market value, and both sides will incur legal fees, in addition to losing their interest in the car.

What if your car isn’t paid off?

If there are outstanding car loans, then the loan servicer has an interest in the car, and based on loan agreements the car owners usually cannot sell or transfer the car without the loan servicer’s permission. Usually, in order to sell or split the car the car owner would have to pay off the remaining loan balance, either out of pocket or through refinancing. As such, outstanding car loans make deciding on car ownership all the more challenging.

In Joint-ownership cases, in order for one partner to be removed from the title, or for one partner to take on full ownership of the car, the car loan must be paid off either out of pocket or through re-financing. With outstanding loans, a partition is unrealistic, because loan servicers will require that the loan be paid off before the partition. Ultimately, your rights to the car will be determined by the loan agreement. Often, it will be easier for the partners to decide who will take the car, and re-title it after paying off the loan.

In sole-ownership cases, things get a bit easier. The partner who is titled to the car will get to keep the car. If they decided to give the car to the other partner, the couple would need to re-title, and re-finance the car to remove the old loan.

Figuring out how to handle a car after separation is difficult. If you have questions about how to split a car between partners, or if you need help with a cohabitation separation in general, the experienced family law team at Russell Law Offices, S.C. is ready to help.


You and your partner broke up, now what?

by Mike Schulz, Associate Attorney

For unmarried couples who live together, breaking up can be far more complicated than couples going through a divorce. Wisconsin does not recognize the concept of common law partners, and unmarried couples are not afforded the protection of marital property laws and codified divorce procedures. Instead, any unresolved issues that require the court’s involvement will be treated as a separate civil case between individuals. This often means that resources available to divorcing couples are not an option, which in turn can drive up litigation costs.

Determining paternity may also be a problem for unmarried couples. Without a formal declaration of paternity with the court or a stipulation between the parents, one parent will not have custodial rights.  Even where all property is mixed and assets shared, spousal support or maintenance is also unavailable to unmarried couples. Although both parents are obligated to contribute towards financial support for their children, that obligation does not extend to a former partner like it might for a divorced couple.

Cohabitation also can raise issues regarding estate planning.  Without a will or trust directing where assets go upon death, any property that is not jointly with a survivorship interest will not pass on to the surviving partner. Instead, the estate would go to their default heirs – likely children or surviving parents.

Whether it is the personal property division, joint ownership of a home or car, assignment of debt, children, or even pets – these issues can be more difficult to unwind without the usual divorce procedures.  Cohabitation agreements are a proactive solution to many of these problems, and can streamline an otherwise long and stressful ending of a relationship.

Russell Law Offices, S.C. can help take the sting off a breakup by drafting a cohabitation agreement in case your relationship results in a breakup. Contact the office today to schedule your consultation.