How to Get Personal Property Back for Minor Child

By Grace C. Roessler

In early 2016, a little museum opened its doors and invited the world to unanimously donate to its shelves. The museum asked for personal items that represented the end of a relationship - the leftovers that were too important to throw out, but too hurtful to keep. Today, handwritten notes, bras, CD's, a lighter, jewelry, and dozens more items adorn the walls and lay in glass cases of "The Museum of Broken Relationships" in Los Angeles, California. The museum and its artifacts serve as a reminder that personal belongings are one of the casualties of separation, and that their ultimate resting place has lasting effects on their owners.

Personal property is usually one of the last issues to be addressed in a divorce matter. Between heated custody disputes over the minor children, complicated income calculations, and research of the value of marital bank and retirement accounts, grandma's pearls and the children's books get lost in the shuffle. Though some items are flagged early on as coveted by both parties, either for their sentimental value or more likely, for their cash value, the distribution of many common items located in the former marital home is ignored until the very end, usually to the detriment of a client and the client's minor children. It may be easier in practice to save personal property division for last, but there may be benefits to dividing personal property earlier in the process, including but not limited to providing children equal access to their belongings at both parents' homes and giving parties personal comforts that may bring them to the negotiation table earlier. In addition, if parties wait too long to divide the property, they may be denied the opportunity. If a year or two has gone by without a walk through and the parties are now at trial, judges are generally resistant to allow a walk-through of the property so late in the game, citing that if a party has gone this long without the item or can't recall the item off the top of his/her head, there is no need for him/her to retain it or to conduct a walk through, even if the party had the right to do so by Stipulation many months before. All the more reason to start the process early.

This article will define and categorize personal property; explore the importance and impact of property division on parties and their children; highlight the various circumstances in which personal property division may be accomplished, including in circumstances where a party has been ordered out of the former marital home as a result of a 209A Restraining Order; and set forth potential time lines and strategies for recoupment of personal items with and without court intervention.

What is Personal Property?

MGL Ch. 208 Section 34 sets out factors to determine the overall property division of the marital estate, which may include the former marital home, vehicles, bank and retirement accounts, and additional properties owned by the parties or for which the parties have an interest. These assets are required to be disclosed and listed on the parties' Rule 401 Financial Statements filed with with the Court. But what about clothing and toys? Furniture? Cooking bowls? These items, sometimes referred to as "personalty" or "personal belongings", may not appear on the Financial Statement or simply are footnoted but not valued because their value may be undetermined or insignificant. But clients care about these items, and they, too, must be divided pursuant to a divorce.

"Personal belongings" generally fall into four categories: "wearables", children's items, "big ticket items" and everything else. "Wearables" are the client's identifiable clothing, jewelry, toiletries, and shoes. The children's personal items may include toys, stuffed animals, clothing, and sporting equipment. "Big ticket items" include artwork, wine, antiques, specialty tools, high value jewelry, or other items which are insured or have been appraised during the marriage. In many circumstances, the big ticket item was passed down to the couple through relatives, was a wedding present, or was purchased during the marriage. It may have significant financial and sentimental value. The final category is a catchall, which includes, but is not limited to, furniture, family photos, family videos, bedroom sets and linens, kitchen items, work tools and gardening/landscaping items – items that are located in the former marital home or other properties owned either jointly or separately by the couple. Even the fertilized eggs of a spouse are considered joint property subject to division.

Understanding the categories of personal belongings is key for effective and efficient property division. Clients should provide counsel a list of their personal belongings in the aforementioned categories so that counsel may (1) comprehend the depth of a client's personal property holdings; (2) strategize about a timeline for retrieval; (3) consider an appraisal of certain items; (4) conduct a cost-benefit analysis of retrieval of goods versus the time and money incurred in retrieving them; and (5) determine the impact personal property division has on the overall asset division.

Drafting an Agreement to Outline Personal Property Division

Once property is identified and categorized, it is time to strategize how to divide the items. Any agreement between the parties regarding personal property division should be memorialized in writing as a Stipulation to be entered as a Temporary Order with the Court. An agreement should outline a procedure and timeline for identifying uncontested and contested items, and set forth a process by which contested items are divided. Though every case is different, a typical Agreement may contain the following provisions:

1. A scheduled walk through of the home on a certain date and time. Parties should walk through the home together and identify objects that each party seeks to retain, including each party's wearables, children's items, big ticket items, and the catchall items. It may be useful to photograph items to identify them.
2. The creation of two lists: uncontested items and contested items, which should encompass all of the categories of the personal property.
3. Procedure for removal of the agreed-upon items. The agreed upon items should be noted, packed, and provided to the spouse who is moving out. In the event that an item is too large to fit at the new location, the spouse retaining the item should be responsible for any and all storage fees associated with storing the item.
4. Procedure for division of the contested items. The items which are not agreed upon should be noted and photographed, if they have not been already. The parties may choose to engage a special master to help them divide the contested items.

In crafting such an Agreement for your client, practitioners should remember the following:

1. It is essential to provide the other party with his/her wearables as soon as possible so as not to deny him/her appropriate clothing for work, travel, and day to day activities. Parties should not be forced to incur additional cost to buy clothing that he/she already owns, especially where parties should be conserving savings for legal fees and living expenses. Looking presentable at work is important, and a spouse should not jeopardize the livelihood of the other spouse by withholding clothing that is necessary for his/her employment.
2. Emotionally, a party who is able to retain his/her personal belongings sooner in the process may be less stressed about the separation. If a party believes that he/she is equally situated as his/her spouse, the client may be comfortable making concessions on other important issues, such as parenting plan schedules and holidays, support, and bank and retirement account division. A client's demeanor inevitably affects the children. Parents may be less likely to disparage the other parent to the children where he/she believes the other parent is giving him/her equal access to personal belongings to secure a new place to live and move on with his/her life.
3. It is imperative that both parents have suitable amounts of children's items for his/her respective parenting time. Children respond to change in different ways, and having familiar toys, blankets, and activities from the marital home is key to providing the child comfort. A lack of familiar items impacts a child's willingness to visit with the parent who has relocated. Guardian ad Litem reports are littered with quotes from children who report that they don't like going to dad or mom's house because it does not have enough of the children's toys in it. The parent who moves out of the marital home already has an uphill battle to attract the children to a new location; this transition is made easier if the children are assured they have their familiar items at the new residence.
4. Big ticket items can be physically divided prior to their appraisal so long as there is a previous record of the value of the item. If the item has not been recently appraised, it may be strategically appropriate to leave the item where it has been kept until an appraisal can be completed.
5. Personal belongings are subject to the automatic restraining order under Supplemental Rule 411, which requires that neither party "sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney's fees and costs in connection with the action; (e) written agreement of both parties; or (f) by order of the court". The Rule is effective for the individual who filed the complaint for divorce upon his/her filing. It becomes effective on the defendant upon service of the summons. Should an individual throw out, sell, or damage any property which has not been assigned to him/her by agreement, the other spouse may bring a contempt for violation of Rule 411.
6. In the event that the parties have agreed to sell the former marital home, and the party living in the home is responsible for getting the home sale ready, special terms should be in place regarding what is permitted to be thrown away to prepare the home for sale. Parties occasionally disagree about what constitutes "junk" or "garbage" in basements, attics, and garages. It is helpful to have very clear terms in any stipulation regarding the removal (to another location) or disposal of personal property.
7. Parties who have removed items from the home may be required to return them or pay a certain sum to the other party. In some circumstances, a party will remove personal property from the former marital home prior to filing for divorce, leaving the party who remains in the home without access to those items. Though Rule 411 was not in effect at the time the party removed property from the home (so the client does not have grounds to file a complaint for contempt), clients may still be able to recoup the item or 50% of the value of the item if there is proof of the existence of the item and its value. This is true especially where the item is considered a big ticket item, such as a piece of artwork or a stereo system, and appraisals or receipts are available to support the alleged value of the removed item. In many circumstances, the item likely will not be returned to the home, but the parties should the value of the item in the ultimate property division equalization.

Alternatives and Special Circumstances for Personal Property Division:

A Buy Out

In some circumstances, the parties may find the process of dividing items too difficult, too time consuming, or not cost effective. It may be appropriate to structure an arrangement for one party to receive a lump sum payment to be used to purchase new items for the new home. This is an alternative to spending significant sums on lawyers to coordinate the personal property division.

Eviction by 209A Restraining Order or M.G.L. Chapter 208 Section 34B:

Clients who have been ordered from the marital home are at a true disadvantage when it comes to retrieving personal belongings and belongings related to minor children. No matter how long an individual has lived at a residence with his/her spouse, once the spouse successfully obtains a 209A restraining order or order pursuant to M.G.L. Chapter 208 Section 34B against the other spouse, the spouse has only a few minutes to gather personal items from the home by police escort. In many circumstances, individuals are accompanied by the police to the marital bedroom and allowed to grab only what he/she can carry. For many, this means possessing only a few pairs of pants, shirts, underwear, toothbrush, and shoes for days, even weeks. The impact is severe. After the spouse leaves the home, he/she will not be legally allowed to enter the property without prior written permission from the spouse staying in the home or court order. This means that despite the weather or the occasion (daily work, business meeting, planned trip out of town), the evicted spouse likely does not have appropriate clothing for himself/herself. It also means that if the parties arrange any parenting time with the children in the parent's new location, that parent will not have any of the children's clothes, toys, or bedding during his/her parenting time unless the spouse who remained in the home provides them.

In the case of a 209A removal or Section 34B eviction, practitioners should not be afraid to start the personal property discussions early. If possible, simultaneous with the removal, counsel should contact the other party or the other party's lawyer to arrange for (1) the rest of the party's wearables - personal belongings, such as clothing, accessories, jewelry/watches - to be returned to the person and (2) a subsequent walk through of the house at a pre-arranged date and time to go through the rest of the larger items. In the event that the parent who is moving out of the house has parenting time, the parties should also mandate that the parent take some of the children's items with him/her to ensure that the children are comfortable during parenting time.

Where a 209A restraining order exists, the parties cannot be in the same place together. Either the spouse who remained in the home should leave the premises while the other walks through (a mutual friend or family member can supervise), or the evicted spouse may send a friend or family member to pick up items prearranged by the parties, including all of the party's clothes, accessories, and makeup or jewelry/watches. Parties may also arrange for a police officer to be present at the walk through; police officers generally charge per hour for a minimum of three to four hours, which may not be cost effective for the client.

After the walk through, the parties should follow the guidelines set above beginning with #2, and agree to the terms in a Joint Stipulation to be entered as a Court Order in connection with the pending divorce action.

Following Up

As many practitioners are aware, a stipulation or a court order regarding the division of certain personal property or outlining a series of steps to effectuate property division is not the end of the road. Both parties have an obligation to follow through on the order, and seek relief in the event of a party's noncompliance or misfeasance. In the event that a party refuses to abide by the Order or stipulation, a contempt should be filed and heard as soon as possible.

Other circumstances may arise that warrant rescheduling the date of the walk through. It may be tempting to allow the parties to re-schedule for a later date or "figure it out later" but practitioners, particularly ones whose clients live outside of the former marital home, should be cautious. For many, the opportunity for a walk through diminishes over time. Schedules get filled with business meetings, school events, and court hearings, and before you know it, trial is upon the parties.

In order to ensure that personal property is resolved and the client is not harmed, walk-throughs should be conducted as soon as possible, and personal property division should not be reserved for trial, if it can be avoided. Complaints for Contempt or Motions to Enforce the Stipulation should be timely filed and argued prior to the trial date.

Conclusion:

The division of personal items has both an emotional and financial impact on divorcing spouses and their families. For many, it is the physical manifestation of the breakdown in the marriage. Items that once belonged to the family as a whole are divided into two separate households. Parties who mutually separate on their own terms are in a better position to take time to review their household items and begin to split them, whereas parties who are removed from the home subject to a 209A restraining order have more difficulty in accessing their personal items. In both situations, property division may be completed either by dividing the property or arranging for one party to purchase similarly priced items for his/her new residence. Though in practice personal property division may be at the bottom of your list, it will be closer to the top for the client, and it may benefit the parties and the ultimate settlement of the matter if the personal property is addressed early in the proceedings.

Grace is an associate in Mirick O'Connell's Family Law and Divorce Group. She concentrates her practice in the areas of divorce and family litigation. She assists clients in all actions involving divorce, custody, child support, modification, removal actions, and paternity. Prior to joining Mirick O'Connell, Grace was an associate at the firm of Brick, Sugarman, Jones & McBrien, LLP.

How to Get Personal Property Back for Minor Child

Source: https://bostonbar.org/sections-forums/sections/family-law/family-law-newsletter/2016/11/30/fall-2016-what-about-johnny-s-blanket-navigating-personal-property-division-early-and-effectively-in-divorce-proceedings

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