Personal Property Division
Thème: Family Law mars 10, 2021 by Matt Brown
One of the most difficult aspects of a separation is dividing the personal property that spouses have made, collected or purchased while together. It can be an exhausting and contentious process. This is one reason why it may be the last issue for the separating parties to resolve. It’s generally in no one’s interest to have lawyers counting cutlery and taking stock of personal items like albums, kitchenware and used furniture. Cost aside, third-parties lack the perspective needed to value personal items. While personal items may have a quantifiable and objective value, the value ascribed to them by the parties is subjective and intertwined to their emotions, needs and interests, as they define them. A basketball, whether game-used and signed by Michael Jordan or merely dribbled on the family yard, can carry substantial emotional value.
There will be situations where at least one of the parties needs outside help and potentially a lawyer’s assistance in dividing personal property such as, situations where there is a power imbalance or undue influence that one party holds over the other. In such circumstances, lawyers can play an important role in overcoming communication barriers between the parties. That said, where appropriate and feasible, parties should be encouraged to divide personal property absent third-party, particularly lawyer, assistance. If you can, save your legal budget for advice on issues like child support, spousal support, and dividing pensions, investments and the matrimonial home.
Sometimes, a dispute may arise not centered on the issue of “what do you want?”, but, rather, “what do you not want?” This is especially true where there is a cost of disposition for the items to be retained, such as a full garage where there is a cost to cleaning up and claiming items. A helpful way to overcome this, is to have the parties agree, in advance of beginning the process of property division, to share the cost of disposition equally.
There are an endless variety of methods for how parties could agreeably divide personal items. There is no “best method”. The following method is one suggestion for dividing personal property in circumstances in which the parties cannot agree and wish to settle personal property division without outside help:
Modified Flip A Coin Approach:
1. Before beginning, the parties should discuss the process in general as described below and set out the terms to follow
- i.e. how many objections each party will get in Round 1, Round 2 etc.
2. Take stock of inventory
- Draft a complete list of all inventory that the parties cannot agree on who will take possession of.
3. Flip a coin
- Winner chooses first
4. Variation- Objections
- Allow objection to what is chosen by each person
- Can allow for as many objections as agreed to before the process (i.e. 10 objections, unlimited objections etc.)
- Once objection is used, that item/object is to go on a 2nd list
5. Once the parties get through the first list and all objections have been made, move onto the 2nd list and start the process anew
- The parties can flip a coin again for the 2nd list or keep the order intact from the 1st list and have the person who chose the 2nd last on the 1st list, make the 1st choice on the 2nd list
6. Variation- Objections
- Following the same process as the 1st list, allow for a number of objections on the 2nd list
- The number of objections for the 2nd list should be determined in advance of this process. It is suggested that the number of objections for the 2nd list be minimized or capped off at a certain number.
7. The 3rd list
- Any items that cannot be agreed upon and find their way onto the 3rd list are to be sold with any profits from the items therein is to be shared among the parties.
- An alternative to re-selling items on the 3rd list is to agree to donate the items to charity or to be gifted to one of the children, assuming there are children to gift the items to.