A common source of tension and confusion for couples going through a divorce
concerns the disposition of personal items that remain in the formerly
shared marital residence during the course of mediation and court proceedings.
Disagreements over these items, despite their relatively minor monetary
value, can create costly delays in litigation or even undermine settlement
agreements between the parties.
Many of these hardships, however, can be avoided with a bit of planning
and strategic foresight. Below are a few prudent steps and suggestions
for couples going through a divorce to ensure an appropriate division
and treatment of personal items.
Prepare a List of Personal Property
In order to ensure that personal property is appropriately addressed during
the course of divorce proceedings and not divided in a haphazard or incomplete
manner at the last minute (when it is difficult for parties to recall
what personal property is actually contained in the marital home), it
is important to prepare a comprehensive list of all the personal items
that you would like returned to you as well as a good faith estimate of
the value of those items. That list should be delivered to your spouse
or your spouse's attorney before you go to court or mediation and
can often be used as a basis for an agreement between the parties during
mediation or a court ordered settlement agreement.
Attempt a Voluntary Division of Personal Items
If the list of personal property is reasonable and amenable to both parties,
the property may simply be 'handed over' or divided voluntarily.
If this is the case, and the court has not entered any temporary orders
or restraining orders prohibiting it, a spouse is entitled to return to
the marital residence to collect agreed upon personal items and 'low
value' separate property.
It is best to restrict the property divided in this manner to items that
are worth below $500 (such as personal clothing, toiletries etc.) and
avoid seeking to retrieve higher value assets that may create disagreement
between the parties or later be determined to be property of the community
(such as large televisions, washers and dryers, etc.).
Consider Whether the Distribution of Personal Items Might Be Facilitated
By a Third Party
Even in the most amenable of dissolutions, and even if all of these guidelines
are followed, one spouse may feel unconformable permitting their former
spouse unsupervised access to the marital home. These situations will
generally require the parties to seek out a neutral third party who can
be granted limited access to the marital property in order to retrieve
the agreed upon items.
Court Ordered Division
If the parties themselves cannot independently agree to a distribution
of personal property, then a mediator or a court order may divide the
personal property for them. There are two ways that this might occur.
The first is through a settlement agreement. Many settlement agreements
will list the personal property that each spouse is entitled to and establish
procedures for retrieving those items (for example, whether a third party
must be present or whether notice must be provided prior to retrieving
personal items). These agreements, if incorporated into the court's
final order, can also be enforced through the sheriff's office or
another law enforcement agency if necessary.
If a settlement agreement has not developed a plan for the division of
personal property, the parties may seek a court order requiring the return
of certain personal property. A court order, like a settlement agreement,
will generally specify the time and manner in which the property may be
retrieved. If either spouse does not comply with a court order allowing
the retrieval of personal assets, he or she may face contempt of court
Care for and Destruction of Personal Property During a Divorce Proceeding
Regardless of which method the parties choose to aid in the distribution
of their marital assets, it is important to consider the way in which
personal property will be cared for as divorce proceedings progress. In
nearly every case, spouses are under an obligation to preserve marital
assets and/or the property of their spouse. Pursuant to that obligation,
one spouse may not, for example, sell or 'throw out' the personal
property of their husband/wife that has remained in the marital residence.
Instead, they must protect the property and await an assessment and order
by the court.
An exception to this obligation can arise, however, if there is property
that is unwanted by both parties and both parties agree should destroyed
or disposed of.
For more information concerning the distribution of personal property,
contact a McKinley Irvin family lawyer or read more about
the division of assets during a divorce.