Dividing Personal Property In Your Divorce Case

Dividing personal property in a divorce case can seem simple. A careful understanding of all property that the Family Court considers “personal” should help keep the process clear. 

Marital property is all property acquired during the marriage regardless of how it is titled. The family court has the authority to divide both real and personal property. Real property is real estate. Personal property is everything else.

The family court is required to start with a 50-50 division of marital property and then work “back” from there to determine an “equitable” or fair division based upon the statutory criteria. While the division of real property is generally straightforward, the division of personalty may not be so obvious.

In addition to the bedroom suite, the sofa and the china, personal property also includes retirement accounts, brokerage accounts, pensions and college savings accounts and businesses. It is important to get all financial statements from as close to the date of marriage as possible through the date of filing your case in the family court or your physical separation from your spouse. Generally assets held in financial accounts at the time of marriage will be separate property, along with their passive gains and losses, and what is acquired, or added to these accounts will be considered “marital” and subject to division by the family court.

In addition, some people have expensive artwork and jewelry which should be appraised for value if you and your spouse cannot agree upon a value. Finally, as mentioned above, any business acquired or started during the marriage is also property subject to division. The value of a business can be difficult and costly to determine, and in some instances may be nothing more than a stream of income to the owner.

It is often not cost effective to request that the family court make a division of personalty, such as furniture, TV’s, auto’s and miscellaneous items. The collective cost of these items will almost always be much less than the cost of presenting these claims to the court through your attorneys. In these situations the best use of your time and money is to simply submit this issue to binding arbitration. An arbitrator is a family law attorney who has been hired to be a neutral factfinder who will listen to the evidence in an informal setting, such as his or her conference room, and then issue a ruling binding on both parties. In other words, they are simply a private judge who will end all the fuss about personal property so you both can get on with your lives.

In preparation for arbitration you will want to list and possibly even photograph all the personality you want to keep. Make an Excel spreadsheet listing a description of the property, date acquired, value, title and a brief statement as to why this property should be awarded to you or your spouse. Attach any supporting documents to your spreadsheet that make your case stronger. For example, if you have a receipt for a gift given to you during the marriage, make reference to the receipt on your spreadsheet and attach it as an Exhibit.

If you can get clear about what you want, how and when you want to receive it, and what you are willing to give up, or “trade” for it, you will be ahead of the game when your divorce negotiations reach the issue of your personal property. The arbitrator will find you to be “on top of your game” and you will have a great deal of credibility. Besides, you will make the arbitrator’s job much easier, which is also not a bad thing for you!

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