Is it Legal for Property to Be Removed From a Home During Divorce?

By Rob Jennings J.D.

While you may be used to doing what you want with your own property, that may change once you start going through a divorce. What happens to your property during your divorce depends on the laws of your state and how each asset is classified. While you probably won't face criminal prosecution for removing property from your house during a divorce, you may have to account for the value of removed assets later.

While you may be used to doing what you want with your own property, that may change once you start going through a divorce. What happens to your property during your divorce depends on the laws of your state and how each asset is classified. While you probably won't face criminal prosecution for removing property from your house during a divorce, you may have to account for the value of removed assets later.

Marital Property

States divide marital property under laws of either equitable distribution or community property. In general, marital property is property that you acquired during the marriage, with some jurisdictions making exceptions for inherited and gifted property. While the law varies from state to state, it generally doesn't matter who paid for something or in whose name it is placed in; the critical issues are usually when the asset was purchased and where the money to buy it came from. If you remove marital property during a divorce, be willing to account for it when the time comes to value and distribute the marital estate.

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Separate Property

Separate property, on the other hand, will generally not be divided by a court. This generally includes property not classified by the state's family law code as either marital or divisible property. It frequently includes property owned by either spouse before the marriage, property acquired during the marriage by one spouse by inheritance or gift, and property acquired after the couple separated with post-separation earnings. It also includes income from some separate property and property obtained in exchange for separate property. Usually, you won't have to account for separate property that you remove from the home during a divorce.

Divisible Property

"Divisible property" refers to the increase and decrease in the value of marital property after a couple separates. It also includes property received after the date of separation that can be traced to the marital efforts of either spouse before separation, passive income generated by marital property and received after separation, and post-separation increases in marital debt. Because of the nature of divisible property, you probably won't be carrying any of it out of your house.

Remedies

Some states have created automatic restraining orders when one spouse files for divorce, prohibiting removal or dissipation of marital property. If property is removed from the home in violation of the order, the spouse who took it could face sanctions for contempt of court. This doesn't necessarily mean that an item of property can't be moved from one spouse's location to the other -- it typically means that property can't be transferred to a third party. If your state doesn't have an automatic provision of this nature, you can ask the court to impose one. If you're concerned that marital property might go missing in your divorce, you can photograph, videotape or otherwise inventory property before you separate. Keep copies of investment and other financial account statements.

Disagreements

If you and your spouse can't agree upon the value or distribution of your marital property, a family court will decide for you. In your property division trial, the court will assign a value to all assets and debts and decide who gets what. In a community property state, the court divides the estate equally. In an equitable distribution state, the court may award a lopsided distribution in the presence of certain statutory factors.

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Proving Money Is Inherited

References

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Divorce & Community Property

In community property states, property and debt acquired while married is divided equally in a divorce. However, in a non-community property state, property is divided by equitable distribution, meaning a judge will divide property in a manner that is equitable or fair and not necessarily equally. Couples divorcing in a non-community property state follow that jurisdiction's rules for division of debts and assets, regardless of whether the couple lived in a community property state at the time the debts and assets were acquired. However, in all states, if the parties agree on a realistic division of property, the court will generally accept their agreement.

Financial Gifts in a Divorce

In many cases, if you personally receive money as a gift, it will not be affected by a divorce. Generally, gifts made to one spouse are considered "separate property," meaning it belongs solely to the spouse who received it, even if received during the marriage. However, courts may consider the financial resources of each spouse, including separate property, when determining the terms of the divorce. While divorce laws and property division vary by state, courts may have discretion to divide separate property in a divorce depending on the circumstances.

Is Your Ex Entitled to Your Separate Bank Account After a Divorce?

Money can be a source of contention in divorce. While it is common for a couple to have a joint bank account, each spouse may also have one or more separate accounts. Knowing how the funds in these accounts are classified in divorce, and what steps you may take to add greater certainty to the process, will help you protect your property rights.

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