99% percent of parties divide personal property without needing the court’s help. Sometimes, however, we find ourselves negotiating over property that has minimal sentimental value. Next to child custody, the fight over who gets personal property is where people get most wound up. This is likely because certain items have memories attached to them. Some people tend to cling to the past during a divorce and personal property serves as a security blanket and offers great sentimental value. Also, people spend their lifetimes accumulating tangible items and the thought of having to start all over is tough to handle.
One common problem arises when one party is in possession of most, if not all the marital property at the beginning of the divorce. This happens when one spouse continues living in the family residence after the other moves out. When spouses physically separate, the one who left the family residence is at a huge disadvantage. As the saying goes, “possession is nine-tenths of the law. “
Once a spouse moves out of the family residence, it is difficult to go back to retrieve items. The spouse who remains in the residence typically obtains a court order granting him or her exclusive use of the home and thus, the spouse who vacated the home is left begging for permission to pick-up important items he or she needs to survive, such as clothing, sundries and work papers.
For spouses who are either leaving or have left the family residence, we make the following suggestions:
- Take important property when you leave and make a list of items you are leaving behind. (It is not suggested that you itemized trivial things.)
- Before leaving, take photographs and video record the interior and exterior portions of the home, focusing on specific items of importance. Date stamped photos and videos can be useful to prove items were in existence on the day you vacated the home.
- To retrieve personal property after moving out, send the list of items you want to your spouse well in advance of going back to the residence. While there, if you are met with resistance for all items on your list, take what you can get. Do not get into an altercation over items of personal property. You can ask the Court to award you the remaining items later.
- To avoid a confrontation, arrange a mutually agreeable date and time with your spouse to return to the residence. Also arrange to have a third-party present while collecting your belongings. Sometimes officers will agree to stand-by while you are in the home. Keep in mind, police officers will not stand-by for lengthy periods of time, so go in with your list and get out quick.
If there is no agreement about the division of personal property, the Court will resolve the issues in trial. Most family law judges do not like spending time deciding personal property, so asking the Court decide should be a last resort.
If you have no choice but to go to trial over personal property, your Judge may resort to methods you find unfair. For example, some Courts order parties to place their personal items on consignment and split the proceeds from the eventual sale. Other Courts directed parties to alternate placing post-it notes on every single item and taking property that way. We have also seen judges award property to the spouse who pays the highest price .
Ultimately, litigating your right to personal property is usually more of a hassle than what it is worth. Going to trial is expensive and that money could be used to purchase new items. Some say, there is actually a feeling of freedom by letting go of personal possessions. As the song goes, “freedom is just another word for nothing less left to lose.”