Been unable to find separate places for your “stuff” between you and your divorcing spouse? Can’t reach that agreement on who takes the 55″ HDTV and who gets the Entertainment Center in which the HDTV once sat? Well, you aren’t alone. This predicament seems to come up in 75% of divorces. Now, dividing up your stuff through the formal procedures of litigation becomes very costly. Here are 4 processes you may have to go through to get your “stuff” divided:
1. Listing it all in an Inventory and Appraisement. You are going to be required to make that list of all of your “stuff” in detail as part of your Inventory and Appraisement with detail, certainly, and subject to strict scrutiny. The list I suggested you make in the last Blog which could have been done without time restraints and pressure now gets guided by your legal team and strict adherence to a set of rules on what must be included gets put on you. If you forget to claim something as your separate property, then it could be deemed a judicial admission, and the car you had wanted and he gave you for your birthday may become community property subject to him getting it. Forget to list something, and then it could become undivided property subject to another round of lawyers and courts. Value some of your stuff that you think the other side is going to get too high, then there’s a real good chance you are going to get to keep that “stuff” at the inflated price you said it was worth in the Inventory. The stakes on dividing your “stuff” get much higher now.
2. A Motion for Contempt. The “stuff” you didn’t think was important and took to Goodwill without her permission now becomes a Motion to have you put in jail for disposing of property without a court order. Having a garage sale to decrease the amount of all your “stuff” and make a few dollars, throwing “stuff” away because your estranged spouse didn’t pick it up on time, or moving your spouse's stuff to a storage or a friend’s house that somehow gets “lost” or “stolen” all may result in a Motion for Contempt against you seeking return of the “stuff”, fines, attorney fees, and even jail time. The personal property now gets used as leverage to achieve a bigger issue or gain advantage in the lawsuit.
3. Division in Mediation. At some point, if you and your soon-to-be ex don’t settle your entire case, including who gets what of your “stuff”, you will be sent to mediation. To start off, you are going to have a new 3rd party now join the process of dividing your “stuff” along with all your other assets and liabilities. This day will not be inexpensive. The mediator, your lawyer, and your spouse’s lawyer all committed to a full day of negotiating. The issue of splitting your “stuff’, I have found, comes at the end of the day. All the seemingly hard issues of kids, support, asset, and liability issues get handled, and then the attention turns to your “stuff”. The preferred method is always the “division in kind”. The mediator will ask what “stuff” each person wants from the other. If early in the case one spouse has vacated the marital residence leaving the other spouse and a houseful of “stuff”, there is going to be a lot that is wanted. The other approach I see is where one spouse values the “stuff” the other has a some exorbitant amount and then graciously will allow the other person to keep all that expensive “stuff” in return for he or she taking cash or other liquid assets worth the same amount. Finally, if all those fail to carry the day, then the suggestions get down to a flip of the coin start with the winner picking the first item of “stuff” and the other having the next pick and alternating thereafter until no more “stuff” is to be picked. Another method is one spouse gets to put all their “stuff” into two piles with the other spouse getting to pick which pile they want. Lot’s of strategy is involved in this one. If everything else gets agreed upon except for the “stuff”, then the case winds up in front of a judge whose paid job is then to divide your “stuff”.
4. Division by a Judge. This is really the last place you want to be. Putting on evidence about kitchen appliances, furniture, and bric- a -brac is not economical at any level. But, it happens. So, what can you expect? The Judge has to hear the testimony if that is an issue that has to be decided to finish your case – but they won’t like doing it. And, you won’t like the result of utilizing this method. The entire process is now officially out of your hands and into the hands of a person who will meet you, and decide in a few hours why the “stuff” you accumulated over many years should be split. I guarantee no matter how great your lawyer is there is going to be a message lost in the translation and something you treasure will wind up with your ex. In Texas, trial courts are not allowed by case law to make you flip coins, do lists, go outside the courtroom, and not come back in until you have split your “stuff” – but, in my career, I have seen all of the above used in an effort to avoid trying (what is affectionately called) “the pots and pans”. And they will – but not as a first choice.
Get your “stuff” divided early with your estranged spouse. Save you, the kids, and your soon-to-be-ex a ton of money, argument, and time. It’s going to be split so do it quickly and early. Just remember, after the divorce is overall your new “STUFF” is just yours!