Dividing Personal Property

Posted on Jul 29, 2013 by Katie Carter

The law breaks down property into essentially two kinds: real property, and personal property. Real property is real estate, so any land, property, or other homes that you may own would fall under this category. Personal property, on the other hand, is pretty much everything else, including cars, money, investments, jewelry, clothing, household appliances, sporting equipment, tools, furniture, antiques, family heirlooms, and pets.

In divorce, we have to further categorize each type of property. It is normally either separate, meaning that it was yours before marriage, or it was given to you during the marriage by someone other than your spouse, or it is marital, meaning that it was earned, generated, purchased, or acquired during the marriage. Property can also be classified as hybrid (that is, part marital and part separate).

If the property is separate, there is no question about who retains ownership after divorce. Anything that was yours before the marriage is still yours after your divorce. Anything you were given by someone other than your husband or inherited during your marriage, but that was given exclusively to you (and not as a joint gift to both of you) also remains yours. The diamond ring you received from your grandmother after your marriage is still yours; the diamond ring your husband gave you during your marriage is a marital asset.

If the property is marital, like that diamond ring your husband gave you after your marriage, it is subject to division in your divorce. Since we can’t cut things in half, usually we write agreements so that one person takes an entire asset in exchange for something else. Say you don’t care about his golf equipment, but you would like to keep the antique curio cabinet.

Usually, husbands and wives place a premium on different items within the home. He wants power tools, TVs, recliners, motorcycles, cars, and so on. You, on the other hand, are interested in different items—usually items that have some sort of sentimental value. Sometimes, though, both parties end up wanting the same things. In those cases, we try to recommend that our clients come up with a way of settling their disputes themselves. Flip a coin, for example, and whoever calls it gets to pick the first item, the other can pick second and third. Then, you would alternate from that point. In most cases, we really emphasize the importance of handling this outside of court. As you can probably imagine, it’s much, much cheaper to decide who gets to keep the Macbook without paying both of your attorneys their separate hourly rates to argue in court about it.

There are sometimes items of personal property that it IS necessary to argue about in court. These items are usually financial—stocks, bonds, and other investment pieces. If there is a significant value, the property is marital, and your husband isn’t giving you what you feel you deserve, it may be worth it to fight it out in court.

When you’re dealing with personal property, ask yourself two questions:

1. “Is it worth it to pay my attorney to fight over this asset, or would it be cheaper to go buy a new one later?”

2. “Is fighting over this worth it, or am I preventing the rest of my case from moving forward?”

It’s always a cost/benefit analysis, and it’s a good idea to discuss your options with a Virginia divorce attorney.