What Happens to the Little Big Things in a Divorce?
In divorce cases, great time and attention is spent addressing the disposition of real property, retirement plans, investments, and the like, as they often make up the bulk of the cumulative marital net worth.
However, not to be overlooked are the items of, perhaps, lesser cash value, but more emotional or sentimental value; things like engagement rings; family keepsake items; childhood photo albums, and yearbooks or letter jackets. These items fall under the umbrella of personal property and receive less fanfare in the process; but are not less “valuable” or important to the people involved.
So, what happens to these items if you and your spouse cannot agree? Below please find answers for some of the most frequently asked-about personal property items in Maryland:
- The engagement ring. Sorry, spouse on bended knee! The ring was a conditional gift, completed upon marriage. The divorce does not undo the completed gift. Say goodbye.
- The jewelry you bought each other during the marriage. It’s marital property. Whoever the court determines to be its owner will get to keep it and its value will be assessed to that spouse. If an owner cannot be determined, or if ownership is joint, it will be sold.
- The wedding presents. Excluded from marital property are items acquired by gift from third parties, either before or during the marriage. However, if the gift, in this instance, is to both spouses, the wedding presents may, in fact, be joint non-marital property. In that event, the divorce court has no power to effect an equitable distribution.
- The family heirloom given to me/us by my family. If you can prove the family heirloom was given to you and NOT both you and your spouse, you will retain said item as your separate property. However, not often are gifts of this nature accompanied by written statements of intent.
- Untitled personal property like furniture, home furnishings, and appliances. If determined to be family use personal property, the Court can award use and possession of said items to one of the spouses for a period of up to three years following the date of divorce and/or transfer ownership of these items to one party. If not determined to be family use personal property, and an agreement cannot be reached concerning disposition, these items will be sold, likely for pennies on the dollar.
Is the court a good resource for addressing your personal property issues in divorce? The short answer is no. In general, the court does not enjoy spending time and resources on this issue and it is limited in its remedies for addressing personal property. Devoting significant trial time and resources to personal property disputes is often impractical from a cost benefit standpoint.
How do we resolve these issues without resorting to the court? Here are a few options to consider:
- Sell all the personal property and divide the proceeds
- One person keeps all or most of the personal property and pays the other person half the value. You can either reach agreement about what everything is worth and/or get a personal property appraisal of all or certain items.
- Identify those items you and your spouse can agree on in terms of who keeps what and create a list designating the item and who keeps it. Make a second list identify those items you cannot agree on. Flip a coin to determine who gets first pick and then alternate picking items from there until all items are spoken for. (And yes, this type of resolution is employed frequently!)
- For family photos, portraits, or videos: Technology has greatly increased the ability to duplicate these items and for each spouse to retain a copy of all of them, particularly if the family stores photos in a cloud based application. Alternatively, there are many services that will digitize hard copy photos, slides, reproduce original quality prints of photo collages, portraits, etc. and convert Beta and VHS to DVD and even digital media.
If someone removes personal property from the family home before a division is agreed upon or the issue decided, do not forget to include those items in any discussion about the world of items in play – either from a division or value standpoint.