A common source of confusion and tension for divorcing or separating couples in New Mexico involves the personal items that are still in the family home while the legal proceedings move forward. Disagreements over these personal items, even though they may not be worth much, can create expensive delays in the process and even undermine settlement agreements the two spouses have made.
A lot of this, however, can be sidestepped with some planning and foresight. Consider the suggestions and steps below regarding personal items in a divorce to help ensure a fair division and treatment of the property involved.
Make a Personal Property List
To ensure that all the property that needs to be addressed during the divorce is covered, make a comprehensive list of all the personal items you want returned to you, along with a reasonable estimate of the value of each of those items. This list should be handed to your spouse’s attorney before you attend mediation or go to court as it can be used as a starting point for a settlement agreement.
Try to Divide It Yourselves If Possible
If you and your spouse both agree on the personal property list you’ve drafted as is or amended, you can simply divide it voluntarily yourselves. If this is what is going to happen and there are no orders preventing either of you from going to the family home, the spouse can return to the marital home to collect those agreed-upon items on a day and at a time you both agree to.
Generally speaking, property divided in this way should be limited to items worth less than $500, such as personal clothing and toiletries. Trying to take a high-value item out of the home could spark disagreements or be determined to be marital property that has to be divided later anyway.
Use a Third Party If Necessary
Even in the most civil divorces, you or your spouse may feel uncomfortable about letting the former spouse have unsupervised access to the family home. In this case, you may be able to use a neutral third party who will receive limited access to the personal property to retrieve the items you’ve agreed on.
The Court Will Decide If You Can’t
If you and your spouse can’t reach an independent agreement over the personal property on your own, a court order may do it for you. This will come in the form of the settlement agreement, which will outline the terms of the divorce and list the personal items each spouse is entitled to receive. If a personal property division is part of your final court order, it may be enforced via local law enforcement. Keep in mind, local law enforcement usually only give a 15 minute stand-by for you to collect your items. In addition, if one spouse fails to allow another spouse to retrieve the items the court has granted him or her, the refusing spouse might end up facing contempt of court charges.
Personal Property Care During Divorce
Regardless of how your personal property is distributed, it’s important to think about how the property is going to be cared for as the proceedings unfold. In just about every case, each spouse is obligated to preserve all marital assets and the spouse’s property they possess. This means no personal property should be destroyed, sold or tossed out unless both spouses agree to it.
Personal property division is another area of divorce to consider when you are thinking about starting legal proceedings against your spouse. Speak to an experienced family law attorney for help with your personal property division and obligations, as he or she can assist you with it and answer any questions you may have.