<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by qanda:
My husband & I had a domestic dispute on 4/1/00, which prompted me to hand, him my keys and leave the residence for which we shared for (4) years. This past year I did not sign the lease because we were temporary separated during the time our lease needed to be renewed. When we reconciled I neglected to contact the landlord to sign the lease for the year.
Problem: There were a lot of personal items and my child's personal items I could not take with me on 4/1/00. When I returned with a police escort on 4/5/00, my husband had changed the locks and has not permitted me to obtain my things. What can I do? Do I have any rights? Is there some type of paper work that can be filed to enter the residence?<HR></BLOCKQUOTE>
My response:
I must respectfully disagree with our good friend, Homeguru. Our original writer said she was, in fact, married; i.e., her reference to "my husband."
If our writer said she was unmarried, and merely a cohabitant, I would have agreed because there is no statutory support duty between unmarried persons or parties to a void marriage lacking "putative spouse" status ("good faith" belief in validity of marriage). Any claim for "spousal-type" support between unmarried persons ordinarily can arise, if at all, only out of a contract (express or implied) between them. [Friedman v. Friedman (1993) 20 Cal.App.4th 876, 886, 24 Cal.Rptr.2d 892, 898; Schafer v. Super.Ct. (Christopher) (1986) 180 Cal.App.3d 305, 309-310, 225 Cal.Rptr. 513, 515
However, she had a right to enter the home because between "married" persons, there is a statutory spousal support duty, which includes housing. As a general rule, for so long as spouses are married and living together, they owe each other a "mutual duty" of support. [Ca Fam § 4300--"Subject to this division (Ca Fam § 3500 et seq.), a person shall support the person's spouse"; see Borelli v. Brusseau (1993) 12 Cal.App.4th 647, 652, 16 Cal.Rptr.2d 16, 18--"husband and wife assume mutual obligations of support upon marriage"]
The mutual spousal support duty during marriage operates independently of the parties' marital estate or financial circumstances. The parties' respective support obligations "are not conditioned on the existence of community property or income." [Borelli v. Brusseau, supra, 12 Cal.App.4th at 652, 16 Cal.Rptr.2d at 18]
However, the statutory spousal support duty is tied to the parties' marital cohabitation:
· "[A] person shall support the person's spouse while they are living together . . ." [Ca Fam Sec.4301]
· On the other hand, neither spouse owes the other a duty of support when they are living separate from each other by agreement . . . unless the agreement stipulates to continued support. [Ca Fam Sec.4302]
Historically, California courts steadfastly enforced the duty of support owed between spouses by the "marriage contract." To the extent an agreement purported to abrogate that duty while the parties were married and living together, it has been deemed void and unenforceable as against public policy (on the theory it would facilitate or "promote" dissolution). [Marriage of Higgason (1973) 10 Cal.3d 476, 487-488, 110 Cal.Rptr. 897, 904-905 (disapproved on other grounds in Marriage of Dawley (1976) 17 Cal.3d 342, 352, 131 Cal.Rptr. 3, 9)]
We must remember, she only left the home after being browbeaten, and then for only four days (4/1 to 4/5 when she returned with police escort). This short amount of time hardly qualifies for abandonment, and probably qualifies as a "cooling off" period. Obviously, she had a right of entry because husband had a "duty to support" despite the fact that she, herself, did not sign the lease. She has a right to her belongings and to entry for retreival because of the existence of the "marital contract."
IAAL
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