Category: property

What Can I Take When I Leave the Marital Home?

What Can I Take When I Leave the Marital Home?

A point of concern when someone is preparing for a divorce is “What can I take with me?”  Although there is no requirement in Kentucky that divorcing spouses actually set up separate residences, it is usually better in terms of reducing the stress if the parties do not continue to live together.  Once the decision to leave has been made, it can be confusing about what you can and cannot take with you.

Generally, there is no dispute that when a person moves out, he/she can take their personal items, clothes, toiletries, small items of personal property with negligible value, etc.  This is also the case for your non-marital property that you owned prior to the marriage or, perhaps, inherited from someone or received as a gift.
There tends to be more dispute over bigger ticket items such as furniture, electronics, artwork, expensive jewelry, etc.  Usually there are fewer of these larger ticket items so there is more contention over who should receive them.  (“I want the big screen TV!” “No, I want it!”)  What happens then?
First and foremost, you need to consider whether the court has entered a status quo order or other restriction on removing property from the home.  Consult with your attorney, but normally even if a status quo order has been entered, it will not prohibit either party from removing property from the marital residence.  Nevertheless, depending on the facts and circumstances of your case, something more specific may have been ordered.  Regardless, even if you are not prohibited from taking the property from the residence, a status quo order would prohibit you from selling, damaging or concealing the property.  It is absolutely vital that you avoid violating the court’s order.  If you do violate it, you could be held in contempt and subject to fines, attorney fees and possibly even time in jail.
With that being said assuming there is no order prohibiting you from removing property, you can remove pretty much anything you can get through the door that is either yours or is marital property.  Keep in mind that if it is marital property, whatever you remove will come off of your share of the marital estate so it is important that you keep detailed records of everything that you remove.  However, it is much easier to hold onto a piece of property throughout litigation than it is to force the other party to turn it over.  As always be sure to consult with your attorney before you make any decisions.
Photo courtesy of Atomic Taco
Can I Change the Locks on the House?

Can I Change the Locks on the House?

One question that comes up all the time, especially at the beginning of a divorce case, is “Can I change the locks on my house during the divorce.”  The short answer is yes, but please do not stop reading yet.  As with anything else in a divorce, the answer is actually more complicated than a simple yes or no.

In Kentucky, when the parties are married, unless and until the court says otherwise, they each have equal access and rights to marital property regardless of whether it is titled in the name of the husband, the wife or jointly.  In other words, until a ruling from the court, either party has just as much right to the house as the other.

This means that either spouse has the right to change the locks.  Likewise, either spouse has the right to force his/her way into the house and that should not be arrested for breaking into his/her own home.  (Keep in mind that if the house is damaged during the break-in, the party who did so may be required to pay to repair the damage or otherwise be penalized in the final property division.)  As a practical matter, changing the locks on the residence is a fairly hostile action.  It could escalate an already volatile situation and increase tension between the parties.  Increased tension and hostility usually results in more litigation and more attorney fees.

Normally, one of the first motions that is filed in a divorce case is a motion for temporary relief which usually includes a request for exclusive use and possession of the former marital residence.  Once the court has awarded temporary, exclusive use and possession to one party, the other party may not come into the home without the express permission of the party to whom it was awarded or an order of the court.  At that point, it is not only reasonable to change the locks, you are probably stupid if you do not change them.  If the other spouse enters the home uninvited at that point, he/she could be subject to contempt sanctions or possibly even criminal charges.

In addition to changing the locks on the house, do not forget the other points of access.  Security system codes need to be changed and garage door openers need to be secured or the codes changed.  If you have a security company monitoring your home, you may need to provide them with a copy of the temporary order so they know your estranged spouse is not to be on the premises.

As with anything else in a divorce case, before you act, consult with your divorce and custody attorney before taking any steps that may escalate an already tense situation.

Photo courtesy of Matthias Ripp

Marital Property: I Paid For Everything! Why Should My Spouse Get Anything?!?

Marital Property: I Paid For Everything! Why Should My Spouse Get Anything?!?

Many people go into a marriage and never fully commit to the marriage being a joint effort.  They keep separate bank accounts.  They divide up their bills so that the husband pays certain bills and the wife pays certain bills.  Even if they do not go the point of keeping everything divided, in their mind nothing ever becomes “ours.”  Everything is thought of in terms of mine and the other spouse’s.  Those people get a very rude awakening when they go through a divorce.

In Kentucky, a court is going to presume that anything that is acquired during the marriage is marital property.  The few exceptions are property or money that is acquired during the marriage as a gift, an inheritance, income derived from pre-marital property without any joint efforts of the parties, or property/income that can be traced back to one of those types of properties.  That means that money you earn through your employment is marital property.

When you spend that money to purchase things or make a payment on the house or car, you are accumulating marital property.  Marital property is what the court divides in a divorce case.  Regardless of whether your spouse also directly contributed money from his/her income to purchase the thing or make the house or car payment, he/she will be entitled to a share of that property.  Courts take a very broad view of what is marital property and how it should be divided.  Even when one spouse does not work outside of the home, the court is required to consider the contributions that spouse made to the marriage as a homemaker and stay-at-home parent.  Therefore, unless absolutely everything that was acquired during the marriage was paid for with non-marital funds, it will be divided by the court.

When you get married very little you acquire during the marriage remains “yours” or “mine.”  Most everything becomes “ours.”  Understanding this will make it much easier for you to get your case resolved quickly and efficiently.

Photo courtesy of David Goehring

Should I Move Out of The House or Will It Hurt My Case?

Should I Move Out of The House or Will It Hurt My Case?

You have decided it is over, maybe papers have been filed, all you want to do is be away from the other person.  But should you move out of the house?  I am asked that question with some regularity. Many people are scared that they might be accused of abandonment, but with the advent of Kentucky’s no-fault divorce system, that is no longer a concern.  Nevertheless, it does not necessarily mean that you should immediately move out.

The first question is whether you will be asking the court to designate you as the primary residential parent for your children.  If so, you will want to stay with the children and maintain as much stability for them as possible.  Therefore, remaining in the home would be best.
If you believe that ultimately, you will want to keep the residence, it is usually a good idea for you to remain in the home.  Oftentimes, once one party moves out he/she establishes another residence, it is very easy for a court to see that the living situation is working and award the house to the party still residing in the house.  That is not to say it happens every time, but it often comes into the court’s decision making process.
If you have decided to leave, you need to think about the process rationally.  Leaving is going to most likely increase your emotional and financial stress.  Whether it is to escape domestic violence or you have simply decided that leaving is the best thing for you and your family, you need to approach this situation with a great deal of planning.  You will never have a better opportunity to prepare for your divorce case than when you are in the home.  Consider the following points:
  1. Figure out the finances.  If you are leaving you need to assess both parties’ incomes (or lack thereof), document that income, and work out a budget.  The last thing you need to do is stretch yourself too thin by renting a place you can barely afford and then get hit with a child support obligation.
  2. Prepare for co-parenting.  Help the children cope with mommy or daddy moving out.  Kentucky now requires some form of co-parenting class in divorces involving children.
  3. Itemize the property and debt.  You will never have a better opportunity to catalog the property that may be in dispute than when you are in the home.  Do it before you leave.  This includes the residence itself, intangible assets (financial records, stocks, bonds, etc.), business interests, and physical assets such as furniture, artwork, vehicles, etc.
  4. Marshal your resources.  Make sure you have access to as much money as possible.  Divorces are expensive and so it setting up your new place.  Talk with family and friends about helping you with loans/gifts.  Access bank accounts and credit accounts.  You may consider selling some items, but discuss this with your attorney first.
  5. Do not think that just because you have moved out that you can behave in any manner you like.  You need to assume you are being watched or that your actions will get back to your spouse.  It is best not to date or do anything that might make you look bad in court.  Talk with your attorney about possible dos and don’ts.

Moving out of the marital residence is an important decision that should not be taken lightly or without preparation.  Make sure you understand all of the relevant issues before you make a move.  Above all preparation is key.  Do not do anything without discussing it with your divorce lawyer.

Photo courtesy of Meathead Movers