How To Protect Personal Property When Going Through A Divorce
Everyone can name their most prized possessions. They may include cars, jewelry, furniture, art, musical instruments, tools, guns, sports memorabilia, electronics, and maybe even household pets and livestock. If you are married and going through a divorce in Virginia, then the decision of whether and when to part with this personal property might not be 100% yours to make. Just because one party cares deeply about a particular item of marital property or they were the one to buy it, that does not mean they will be allowed to keep it. For example, if an item holds high financial value and the parties cannot agree on who should take possession, a court can order the parties to sell the item and split the proceeds.
Everyone knows that when you get divorced, property gets divided between the parties. Many couples are able to make an agreement with their spouse about how to divide their property. If you are not able to come to an agreement with your spouse, then you will go through a process called “equitable distribution.” This is a distinct part of the divorce process where courts divide up marital property equitably between the parties.
Marital property is property titled in both parties’ names and property that was acquired during the marriage that is not separate property. Generally speaking, separate property is property acquired before the marriage, inherited during the marriage, or acquired during the marriage through the sale of separate property. Separate property cannot be commingled with marital funds. There is also something called “hybrid property” which has characteristics of both marital and separate property. It is important to know that under Virginia Code § 20-107.3 these types of properties are treated differently in equitable distribution.
TIPS TO PROTECT PERSONAL PROPERTY
Every piece of property and pending divorce needs to be assessed on a case-by-case basis, but there may be a few things you can do to protect your personal property interests:
- Make notes on the circumstances for how the property was acquired. Was it a gift or inheritance? If so, from whom and when? If it was purchased during the marriage, what funds were used? Memories can be faulty, so write everything down and find supporting documentation wherever possible. Remember, if it is separate property, then it can be excluded from equitable distribution.
- Don’t leave stuff behind. If you move out of the house, take your valuable things with you. Put items in safekeeping if necessary. The last thing you want is your spouse claiming you abandoned the property or it mysteriously disappearing.
- Communicate your opinions or intent regarding the property to your spouse. Save the communications. If you disagree on anything, have your spouse explain their position.
- Create or track down documentation. Take photos or videos of what you have and its current state, including location and key attributes. If anything has been damaged, sold, hidden, or disposed of by your spouse, make notes of your suspicions with exact dates, reasoning, or other evidence. Gather receipts, appraisal reports, title documents, maintenance bills, warranties, insurance documents, etc. Ideally, you can trace the item’s acquisition, use, and care, as well as any efforts/investments that increase the value of the property.
- Work towards an agreement. Think about how important any piece of property is to you ahead of time, so when it comes up in negotiations you can be decisive.
- Point out to your attorney early what property is most important to you and any concerns you have about it.
We highly recommend you seek advice from an attorney that can help you with your divorce, regardless of your circumstances. This is a difficult time in your life, and it is crucial that you have an experienced lawyer in your corner who will listen to your needs and respond with compassionate, smart, and cost-effective solutions with one goal in mind: protecting what matters most. Our attorneys are skilled in advising clients on matters such as the grounds for divorce (adultery, abandonment, etc.), child custody and visitation, spousal support and child support, and the division of marital property.
To learn more about divorce, visit our Divorce Law page.
By: Maxwell Hand
Maxwell Hand is an Associate Attorney at WhitbeckBennett. Mr. Hand studied Environmental Science at the University of Notre Dame and then attended George Washington University Law School while working full time in compliance management roles in the DC area. After ten years focused primarily on FDA, USDA, CPSC, and EPA compliance, Max transitioned out of the corporate world and into family law in 2021.