Attorney, Cordell & Cordell
Note: Part 2 addressed the sentimental value of personal property and how to properly value your property. Click here to read.
It’s a dangerous clause in your divorce decree: “Each party takes the personal property in that party’s possession, free and clear of any claim of the other.”
This clause is most often an after-thought, tucked away in the boilerplate, something to tidy-up the divorce after the big items – the pension, the home – are divided. With it, every last piece of personal property (that is, everything but land and what’s connected to it) is accounted for, from the sleeper sofa in the living room to the sleeping bags in the shed.
On the eve of trial or the brink of settlement, it is easy to toss in the towel and add this clause just “to move on.” After all, it makes little sense to spend $2,500 in attorney fees fighting for $500 in personal property, and no one wants to look like the wacko bickering over Christmas decorations and the pots and pans.
But, if handled correctly, your personal property does not have to be and should not be an after-thought.
Most items that you acquire during your marriage are what we call your marital property and are dividable when you divorce. (There are exceptions for inheritances, gifts and, in some states, items you and your spouse agree to treat as one’s property, but most items are marital property).
It does not matter whether one spouse purchased the item, whether one repaired it, whether it is titled to one’s name, etc. For example, your power tools are marital property, and your wife could stake a claim to them, even though you purchased them, you used them, and your wife cannot distinguish the drill from the nail gun.
Marital property does not lose its character as marital property simply because one spouse uses the item during the divorce, either. For example, the home furnishings, television, computers, etc., at home are still partly yours even if you move from your home and your wife uses them.
Why does this matter? Money. Every item of personal property has a value. Granted, individually they may be small ($5 for the plates, $10 for the books). But, combined, they add up! A fully furnished, three bedroom, two bathroom home with a family computer, a washer and dryer set and a tool shed would have at the bare minimum between $3,000 and $5,000 worth of personal property. An equitable share, around one-half, is yours.
Now, let’s say when you divorce your wife will retain your home, and all of the furnishings, but the divorce court orders you to pay $1,500 toward her attorney fees or credit cards so that she can make the first mortgage payment. Well, she has already retained your share of the personal property – in an amount that could exceed the $1,500 you owe! If you pay, you pay twice: once in cash, once in property. And in today’s economy, who could afford to do that?
Note: Part 2 addressed the sentimental value of personal property and how to properly value your property. Click here to read.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.
