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

by Rob Jennings
Whether property is separate or marital depends upon the law of your state.

Whether property is separate or marital depends upon the law of your state.

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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.

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.