In a divorce, you will most likely be dividing real property and personal property. Before you decide how the personal property will be divided, you should determine the worth of each item of personal property.
Personal property is defined as everything that is not real property. There are two basic types of personal property: tangible and intangible.
Tangible property is personal property that can be physically handled, for example, furniture, clothes, appliances and jewelry. Tangible property also includes stocks and retirement accounts. However, stocks and retirement accounts are divided somewhat differently than the other items mentioned and is outside the scope of this article.
Intangible property is usually thought of as patents, trademarks and copyrights, which are also outside the scope of this article.
The default rule is that each item of personal property is first deemed to be marital property and subject to the rules of distribution as part of the divorce. However, if you have a receipt, credit card statement, invoice or some other official documentation that demonstrates that you bought the personal property prior to the marriage, then it will be considered your own separate property.
Even if your documentation shows that the personal property was bought during the marriage, it may help in determining its current value.
5 Ways To Divide A Personal Property Or Determine Its Value
If you need to divide up your personal property or determine its value, here are some typical ways that is done:
1. You divide it between you and your spouse. Most divorcing couples can decide who gets what personal property between themselves. In those cases, the divorcing couple will make (or should make) a detailed list of who gets which pieces of personal property. The list should be given to the attorneys who will make it part of the divorce agreement. By dividing the personal property between yourselves, you will save time and money.
2. Getting appraisals, then dividing. In some cases, the personal property may have significant value. For example, art paintings, jewelry, newly bought furniture (typically, less than one year old), expensive silverware, and certain collections. An expert can provide a written appraisal which can then be used so that each spouse receives about 50% of the personal property’s value.
3. Make an offer to buy or sell the item. Sometimes, the divorcing couples cannot decide who gets to keep which item of personal property. I have seen couples unable to decide who gets to keep a $100 Keurig machine. Usually, it is not worth the time, effort or cost to argue over who gets to keep personal property that does not have significant value. However, if you still can’t decide who gets to keep which items, then a good way to resolve this issue, is to either make an offer to buy the item or to sell the item.
This is how this works. As an example, if you can’t decide on who keeps the large flat-screen television set, then you could state that you will take (buy) the television and give your spouse: $400 for it (or alternatively, state, I will sell the television to you for $400). Your spouse can then either: (i) take the $400 and you keep the television; or (ii) decide to give you $400 and then they take the television.
This is a good way to make sure that you offer a fair price for each item. Using the above example, if the television is really worth about $400, your spouse will probably let you keep the television and then accept $400. However, if the television is worth more than $400, they would take the television and give you the $400. Of course, if the television is worth less than $400, then your spouse will also let you keep it and then you would be overpaying for it, by giving then $400. By offering to flip the offer to buy or sell, each party will make a more reasonable offer of the cash value of the item.
4. You flip a coin. Believe it or not, in some situations, divorcing couples simply can’t decide on who gets what personal property. One way to solve this problem is to have the attorneys flip a coin, the winner gets to pick the first piece of personal property, the loser gets to pick the next two pieces of personal property, and then after that the winner and loser alternate picking each piece of personal property.
5. Have the court or an arbitrator decide. A last resort is to ask the court or an arbitrator to decide how to divide the personal property. It is usually not worth the time, effort and cost to ask a court or an arbitrator to make this decision. The value of the personal property will be outweighed by the expenses associated with going to court or using an arbitrator.
When dividing personal property, it is important to be specific and to correctly identify each item of personal property. Taking pictures or videos of the personal property will help in identifying each item.
David Badanes and the Badanes Law Office have represented numerous clients in resolving issues involving personal property. If you need help in your divorce or you are thinking of getting a divorce, then call David Badanes and the Badanes Law Office at 631-239-1702, email at email@example.com.
The Badanes Law Office has offices in Northport, Garden City, Brooklyn and Manhattan.
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