Divorce: Who Gets the China and Area Rugs?

In a matrimonial action, who gets the china and area rugs? The legal answer is as follows: if the specific property was purchased during the marriage, and it cannot be otherwise determined as separate property, then the litigants have an equal claim. The simple and most reasonable answer to the question is: whoever wants it. The fact of the matter is that if you are at a stage in the litigation where this type of question arises, you are likely seeing a

light at the end of the tunnel, and have resolved most, if not all, the significant

matrimonial issues.

In the grand scheme of things, and with the exception of those items

which may have sentimental or pecuniary value (the latter of which had

probably been appraised during the action), the division of same should be the

easiest and least legally costly of the divorce action. Despite this, and for

various reasons, this issue sometimes takes on a life of its own, and results in

increased legal expense and frustration for litigants, attorneys and even

judges. Undoubtedly, the last thing your attorney wants to inform a judge is

that the parties have not finalized their settlement agreement because they

cannot decide who is getting possession of the silverware.

During a divorce, the term "personal property" is distinguishable from

assets such as financial accounts or real property. Personal property is a broad

term which refers to items ranging from clothing, shoes, grooming items, pots,

pans and towels to artwork, statutes, and other collections. Essentially,

virtually all items, other than financial accounts and real estate can be deemed

personal property. Thus, the division of same can be overwhelming merely

due to the vastness of the items accumulated over the course of a marriage.

Unless there is a reason to divide the property prior (ie - a spouse

relocating from the marital residence), the distribution of personal property

occurs towards the very end of the litigation. Generally, each attorney will ask

his/her client to walk through the marital home and submit a list of those items

he/she wishes to retain. The attorneys will exchange the lists and engage in

negotiations regarding any disputed items. If all goes well, the litigants’

agreed upon items will be separately listed and annexed to the final settlement

agreement, and a timeframe for removing the items will be scheduled. At

best, if there is not an agreement on certain items, they can be sold and the

proceeds divided. Or, in the case of family photos and the like, duplicate

copies can be made at equal cost. At worst, court intervention may be

required. In those cases, Courts generally have little patience (understandably

so) for disputes regarding items of personal property, and will make no bones

about it.

With the exception of family heirlooms or sentimental items, there

should be no reason to engage in vigorous and costly arguments about

personal property. If the resolution of your divorce is being prolonged by the

issue of personal property, there may be several reasons that have little to do

with the disputed items themselves. Whether the difficulty lies with you or

your spouse, it may be worthwhile to give thought to the possible

impediments, and adjust your course accordingly, lest you expend more

money in legal fees than what the item is actually worth. Heated disputes over

personal property are rarely over the actual item itself. Often, if you find

yourself in this type of situation, it may be that your spouse is using the

dispute to prolong the litigation in order to remain close to you or, to punish

you for a perceived wrong. Unfortunately, in that circumstance, you may need

the Court to weigh in on the issue in order to provide stern and sound reason

to the other litigant.

In most cases, personal property can be replaced. It is not something

that should interfere with the resolution of a divorce and the continuation of

your life. In fact, it may be an opportunity to refresh your surroundings to

represent your new beginning. Out with the old and in with the new.