Written by Avvo Staff

When is property considered abandoned after a divorce

Even after a divorce has been finalized, many previously married couples still encounter conflict with their ex-spouse when trying to remove personal property from the marital home or, on the flip side, getting access to the home so belongings can be removed.

This can include not only furniture and household items, but also things of significant financial and sentimental value, such as family heirlooms, tools, jewelry, and expensive sporting equipment.

Sorting through these complicated property issues can be difficult. Oftentimes the division of property is clearly stated in the divorce settlement. There may even be a time frame within which the property is to be reclaimed. Simply pointing out to your ex what the judge already ordered may be enough to get some action. If not, consider the following steps:

When you want the property gone

Although it may be tempting to just throw away unwanted property, this is usually unwise. How long property can sit before it’s considered abandoned will vary depending on the terms set forth in the settlement agreement, as well as from state to state. In many states, it is one year.

Even if the time has come and gone, there are still legalities to consider. Before you throw anything away, think about the following:

Who owns the property where the items are being stored?

If your ex is on the deed to the house, for example, and is paying the mortgage, you can’t rightfully dispose of the items. Ownership of the home gives your ex storage rights. But whether the items are there rightfully or not, it doesn't mean you have to be stuck with them forever.

Have you officially notified your ex that you want the property removed?

Write a certified letter to your ex detailing what items have been left (including pictures may be smart) and asking that they be removed within a certain time period (no less than 30 days). Be specific and include things like pickup arrangements, when your ex can have access to the home, how to reach you to make arrangements, etc. If your ex agrees and the items are removed, problem solved.

What if your ex misses the removal deadline?

If you own the home, chances are good that you can sell or toss the items, but it’s probably a good idea to check with your divorce lawyer first. If your ex co-owns the home with you, then your divorce lawyer can advise you about what you need to do to get him/her off the deed (e.g. buying out his or her share and refinancing the mortgage).

When you want the property back

If your ex-spouse is not allowing you access to the home to retrieve your personal property, there are several steps you can take.

Get your lawyer involved.

An attorney can write a stern letter informing your spouse of your legal rights and detailing the procedure of how you will secure your things (for instance, if your things aren't returned by a specific date, you or your representative will come in on a particular day at a particular time with, perhaps, law enforcement, to get them).

Go to court.

If your spouse still denies you access, your attorney can take legal action. You may need to go back to court and ask for an order disposing of the property. Additionally, since your ex may be in violation of the divorce decree, another option is to petition the family court for charges of contempt. Your ex cannot hold your property hostage, and there are laws to prevent him/her from doing so.

Consider the cost.

Legal action costs money. If the items are insignificant in terms of real or emotional value, you may be better off just letting your ex have control of them rather than returning to court.

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