Property division can be one of the most controversial issues in a divorce. And finalizing the divorce doesn't necessarily end the disputes. Usually at least one person has to get personal property back from the other.
In a reasonably amicable divorce you may be able to work out a time to come get them from your ex. But if the two of you are not on good terms, it may not be that simple. Even so, you are entitled to your things, and there are ways to get them.
One or both of you will probably be moving out of your home before the divorce. If there are personal items you know you want to keep, you may be able to take them with you.
Before you do, though, it's a good idea to understand the difference between separate and marital property. This distinction is important to what you are legally allowed to do with items.
Separate property is anything you owned before the marriage. It is yours and not subject to division in a divorce. There are a few exceptions, but they apply mostly to increases in value or property/money you converted into marital property.
Marital property is everything you've acquired during the marriage. It must be divided up according to state law.
You can take any separate property you want even before the divorce is finalized.
You can also take marital property, as long as you're honest about it during the divorce. But you may have to give it back if your spouse didn't agree you could have it. At the very least, its value will be considered as part of your property award.
A good property settlement not only details exactly what each spouse gets, it also includes a time frame for getting it. If yours does, make sure you get your things before it runs out. Otherwise you may forfeit your rights to them.
Depending on how well you and your ex-spouse get along, options for getting your things could include:
Arrange for a mutually convenient time for you to come get them.
Arrange for time alone to get them if you'd rather not see your ex.
Have a third person you both trust come with you. This can help if you'd rather not be alone with your ex or if he or she doesn't trust you alone in the house.
Let your ex pack your things and send a friend or family member to get them. Of course, you have to trust your ex will pack everything as agreed.
Remember, the important thing is you get your personal property as agreed, not who retrieves them.
Of course, sometimes an ex-spouse won't allow you to get your things. This is not legal and you can go back to court to ask for an order to allow you to get into the house to collect your property. The court may also hold your spouse in contempt of court for violating a court order (the settlement agreement).
Your divorce lawyer, or any good family law attorney, can help you file the right paperwork.
Once a divorce has been filed, neither spouse is allowed to sell, destroy or otherwise dispose of any property without permission from the other spouse or the court.
Even after the divorce is final, you can't get rid of anything awarded to your spouse until any time limits mentioned in the decree have passed. If your spouse sells or throws out your things before it's legally allowed, you can claim wrongful disposal.
If your agreement has no time limits, your ex still has to give you reasonable time to get your things, although "reasonable" is a gray area. In general, as long as he or she gives you a deadline and enough notice of that deadline, the courts are likely to consider it reasonable.
A lot of your rights depend on your state's laws and the specific language of your divorce decree and property division agreement. If you have any questions about what personal property you are entitled to or how to get it back, talk to your divorce lawyer or another family law attorney.
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