Divorces are full of contentious issues, but property division is one of the most difficult things to address. Finalizing a divorce doesn’t always end the disputes between spouses, and in most cases, one person has to recover personal items from the other. If the divorce has remained amicable, it’s easy to agree on a time to go and pick those things up. However, when ex-spouses aren’t on good terms, things can get complicated. Here, spouses will learn how they can retrieve the things to which they’re entitled.
Take Important Personal Items When Moving Out
One person (or both) will likely move out of the marital home before the divorce becomes final. If either person has items they’re sure they want to keep, it may be possible to take them when moving out. Before that happens, though, spouses should learn the differences between marital and separate property. This distinction may seem minor, but it’s crucial to what a person can legally do with certain items.
- Separate property is what a person owned before getting married. It’s all theirs, and as such, it’s not subject to asset division during a divorce. While there are a few exceptions, they apply primarily to value increases and assets converted from separate to marital property.
- Marital property is all that’s been acquired during a marriage, and it must be divided according to the state’s laws.
A spouse can take separate property even before a divorce becomes final. They can take marital property as well, as long as they’re honest about it in court. However, they may have to return it if the other spouse didn’t give his or her approval. Alternatively, the item’s value may be considered part of the spouse’s property award.
Recovering Personal Items After Leaving the Marital Home
An appropriate property settlement doesn’t just detail what spouses get in the divorce, it sets forth a deadline by which they must receive it. If a divorce decree contains such a stipulation, it’s important to get those items before time runs out, or the right to the item may be forfeited. Depending on the nature of the relationship between the ex-spouses, options for recovery of personal property might include:
- Setting up a convenient time to go and get the items
- Arranging for alone time if spouses don’t want to see one another
- Having a trusted, neutral third party come along. This may help if one spouse doesn’t want to be alone with the other, or if there’s mistrust
- Allowing the ex-spouse to pack everything up and sending a family member or friend to get everything. Of course, the recipient has to trust the other person to include everything as promised.
Keep in mind, the most important thing is to get those personal items, not who will be retrieving them. In some cases, a vengeful ex-spouse may not allow the other person to get their things. This is illegal, and it’s possible to go to court and request an order that allows for the collection of the property. The court might hold the other spouse in contempt for violation of the settlement agreement. An experienced family lawyer can help a client file the proper paperwork.
Disposing of the Other Person’s Property
Once the divorce is filed, neither person can destroy, sell, or dispose of property without permission from the court or the other spouse. Even as the divorce becomes final, a spouse cannot get rid of things awarded to the other person until the time limit noted in the decree passes. If either person throws out or sells anything before the law allows it, the other spouse can file a claim for wrongful disposal. In cases where there’s no time limit, the ex-spouse still has to give the other person a reasonable amount of time, but there’s room for interpretation. Generally, as long as one spouse gives the other a deadline and sufficient notice, the court will regard it as reasonable.
Many of a person’s rights during a divorce depend on New York’s laws, as well as the property division agreement’s language and that of the divorce decree. If a client has any questions as to what property they’re entitled to or how to reclaim it, they should consult a family law or divorce attorney as soon as possible.