How to Retrieve Your Personal Items During a Divorce
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 proceedings.
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.