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

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 legal 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.