'Living Separate and Apart': Solving the Property of Putative Community Property in Louisiana

Under Louisiana law, along with the laws of eight other states, one of the legal benefits of marriage is the creation of a community property regime between the spouses. This benefit becomes problematic when one person, unbeknownst to them, marries someone who is still legally married to someone else, creating a triadic legal relationship between the legal spouse, the common spouse, and the common spouse’s “new” spouse (also known as the “putative spouse”). Because the legal spouse is still married to the common spouse when the common spouse marries the putative spouse, the Louisiana Supreme Court recognizes that the legal spouse is entitled to at least some of the putative community property that accrues between the common and the putative spouse. Unfortunately, because of the difficulty inherent in slicing a pie three ways when it is normally divided in half, the jurisprudential rules on allocation allow for a compromise between the rights of the three parties involved. But this compromise prejudices the rights of a good faith putative spouse who enters the marriage unaware that her spouse is already married and who is unable to remedy the impediment. Although many scholars have addressed the putative marriage “problem,” one scholar argues that Louisiana should create a method of terminating the legal community property regime between the legal spouse and the common spouse by using a “putative divorce,” which would provide a solution to the inequities created by the current apportionment rules. Although this proposed solution strikes a delicate balance between all of the rights of the parties involved, the solution proposed in this Article strives to protect more fully the rights of the good faith putative spouse and also retains aspects of the current rules, which continue to further public policy. This Article argues that Louisiana should instead adopt a modified form of the common law doctrine of “living separate and apart” to address the problems created by the current Louisiana law as to the apportionment of putative community property. Washington, California, and Arizona — all community property states — use the doctrine of living separate and apart in the context of classification of assets. Although the standard differs among the three states, the basic principle is that the spouses can conduct themselves in a manner that demonstrates that they are not only physically, but also emotionally living separate and apart, even if the marriage is legally still intact. If so, then all property acquired after the legal spouses exhibit such sufficient conduct is deemed to be each spouse’s separate property. This Article argues that the same requisite conduct sufficient to terminate the community property regime under the common law doctrine of living separate and apart should be sufficient to terminate the community property regime between the legal spouse and the common spouse in the context of putative marriage. Such a solution addresses the problems and inequities caused by the current Louisiana law while at the same time addressing some of the issues raised by scholars who argue for putative divorce.