Physical Separation and Divorce – Part One

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Nothing makes a divorce more real than physically separating from one another, leaving the marital residence, packing cherished items. Physical separation can have deep emotional and psychological ramifications, for the spouses and their children. It also has serious legal implications that impact the equitable division of property. In this post, we discuss the legal issues of physical separation; in the next post, we discuss the emotional issues of physical separation, particularly as they pertain to children.

When spouses divorce, they must divide their property in an equitable manner. This requires several steps. First, they must identify separate and personal property. Separate property is any item the spouse had prior to the marriage and intended to keep separate – it could be a vase, it could be the marital residence. Personal property is a spouse’s belongings, from clothing to accessories to small mementos. It would be a good idea to actually itemize on paper all separate and personal property and do this inventory prior to any physical separation.

Next, spouses must identify marital property, which is any item purchased or acquired during the marriage. Marital property is what the court must divide equitably between the parties, and the court does not have the insight into emotional attachments or financial investments the parties have in different assets, so it is preferable that the spouses reach an agreement as to distribution. In thinking about marital property, it is best to think in two categories: large assets and securities, and what we will generally call furnishings. The large assets and securities consist of the marital home, retirement and investment funds, savings, cash, expensive jewelry, art and other items that could be considered income worthy. The remaining marital property falls into furnishings, everything from furniture to electronics to tools to the dog. The large assets will be what the court focuses its concern on the most, and what the parties likely argue over the most because of the value of the assets. Furnishings have practical and sentimental value, and can lead to heated disagreements. To reduce conflict and create an environment of cooperation, spouses should create an inventory of furnishings and begin dividing them together with an eye toward utility and sentimentality. So, if your mother-in-law gave you a crystal set of glasses as a present, let your spouse have it rather than up the anger factor. Other items will make more sense in one new home than another from a practical standpoint, and spouses should think of that in division. These items add up in value, so all moves should be toward fairness. Some items will be hard to divide – wedding gifts from mutual friends, photo albums and other emotionally-laden assets. Where possible, spouses should try and share these items so each have a piece of good memories.

Finally, spouses must realize that once a divorce proceeding begins, the spouses have a legal duty not to dispose of or conceal assets. If a spouse goes out of town on business, the other spouse should not get a moving van and empty the house of its contents. Spouses should show respect for the process and their “stuff” by maintaining the status quo and not taking any property without first discussing and agreeing, preferably on paper, with a copy to the attorneys. Destroying an item you know your spouse likes just because you are angry will cost you later – not only will you be responsible for reimbursing the value of the asset, the court could look negatively upon the behavior and tilt distribution to the other spouse. Gradual separation of physical assets – separate property, personal property, furnishings and finally the big assets – will lead to the simplest and fairest distribution with the least amount of conflict.

In the next post, we will talk about the emotional separation issues, particularly as it relates to the children.

If you have questions about physical separation of property and divorce, contact us – we can help.