Family Law Corner: Dude, Where's My Wife?


When Ashton Kutcher and Demi Moore separated in November 2011, few would have guessed that over a year later (as of the writing of this article) neither has filed for divorce.  Their reluctance to end their legal ties prompted a Radar Online story that was repeated in many other sources claiming that the two were never legally married and only had a Kabbalah wedding.  This rumor was recently squashed when a quitclaim deed was produced stating the two are legally married.  We may not know why Kutcher and Moore are waiting to divorce, but they are not the only ones.  Many people put off getting a divorce and may not be aware of the consequences of staying married while living separate lives.

The quitclaim deed signed by Moore is a perfect example of the consequences of staying married long after separation.  The deed was signed in March 2012 and states that Moore is quitclaiming any interest in the property being purchased by Kutcher.  Since under Family Code §760 all property acquired during marriage is presumed community property, separated people must reach agreements when purchasing real property or other titled items (such as cars, boats) so that title is clear and the presumption of community property is overcome. 

This presumption of community property is part of a greater issue for separated spouses—the continuing fiduciary duties.  Spouses have ongoing fiduciary obligations.  These obligations are set forth in a number of Family Code sections, including §721 and 1100.  Spouses must “make full disclosure to the other spouse of all material facts and information regarding … all assets in which the community has or may have an interest and debts for which the community is or may be liable, and to provide equal access to all information, records, and books that pertain to the value and character of those assets and debts, upon request.”  (Fam. Code §1100).  The fiduciary duties also mean that a spouse cannot make gift, sell, encumber or take other actions with community property.  A violation of this duty could be something as minor as selling a couch purchased during the marriage.  When two people have lived apart for a year or more, the fiduciary duties may become onerous, but violating the fiduciary duties can have disastrous consequences including sanctions.