Divorce Property Issues - Answers to Your Questions

Divorce property issues can be confusing because it makes a difference whether you live in a community property or equitable distribution state.

By WomansDivorce | Answers by Brette Sember, J.D.

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are considered community property states, where all assets and debts acquired during the marriage are generally subject to a 50/50 split.

In an equitable distribution state, assets and debts are divided in an equitable fashion, taking into consideration the duration of the marriage, the income capacity of each spouse, custody of the children, and other factors.

FAQs about Divorce Property Issues

The following questions address some of the issues that come up when dividing assets during a divorce: 

How Assets are Split In Divorce

Gifts and Divorce

Personal Belongings

Divorce and Property Titles and Ownership

Work Benefits and Divorce

Lawsuits and Settlements

Investments / Stocks / Royalties

Pets and Divorce

Property after Divorce

Tax Issues

How Everything Will Be Split

Topic: What can I take from the house if I move out?

Diana's Question: Can I move things out of the house like TV's or furniture before the divorce is final. I have moved out but want to get some large items out now.

Brette's Answer: Whether you can remove items from the house depends on where your divorce is at. If everything has been agreed upon, or the judge has told you what is being ordered, but the paperwork is not complete, it is reasonable to go ahead and take the items that are yours.

If property division is still in dispute, you can take items, but should be aware their value will either be subtracted from your final property share, or may have to be given back should the court decide certain items should go to your spouse. You want to be sure to avoid conflict over taking these items - you don't want to get into a screaming match with your spouse that could turn violent.

Does all joint property need to be sold for a divorce to proceed?

Kay's Question: My Mom was told (by her husband probably) that in order for the divorce to proceed, all property they own together has to be sold. His attempt to sell property that mom wanted to keep was the immediate cause she filed for divorce. Now she was made to believe she has to agree to sell it anyway.

Brette's Answer: Property does not have to be sold. Ownership will be divided however. It sounds like your mom needs to see a lawyer.

What should I ask for in the divorce?

Brenda's Question: I am legally separated and my husband currently pays all the bills, plus child support. I just filed for divorce, and my lawyer sent his lawyer a letter seeing what my husband is still willing to pay. I make a little above minimum wage, so I am scared. I also have two teenagers 18 and 16. What bills are important for me to fight for?

Brette's Answer: You always ask for more than you hope to get. You should be thinking child support and alimony and property settlement. Sit down with your lawyer and look at your household budget and what you need to make ends meet.

Topic: Property division in a short marriage.

Catherine's Question: After 9 months of marriage, I cannot deal with my husband, who has ended up being a total control monster. I resigned from my job when we got engaged to help take care of the boys. I have taken all my assets and merged everything with his. I still own my own home that my son and I lived in before the marriage, as well as my car. What are my rights?

Brette's Answer: As for your marriage, you can get out relatively whole. All items that were owned by you prior to the marriage are yours. Items acquired during the marriage will need to be divided. How it is divided depends on what type of state you live in - community property or equitable distribution. In a community property state the presumption is that everything is split 50/50. In an equitable distribution state it is divided in a way that is fair. Debts are divided along with assets. You should see an attorney immediately and find out what steps you need to take to protect yourself.

Topic: Property division in a long marriage.

Marilyn's Question: After 24 years and four children, my husband has decided that he wants a divorce. We're in the process of mediation and, are stuck on two issues, his Pension and alimony. For over 16 years of our marriage, I was a stay- at- home mom and put my career aside to raise our children. He doesn't feel that I need alimony or any part of his pension because he says he has to live too. I don't want to take away what he needs to survive, but I feel that after 24 years of marriage, I am entitled to at least these things. What are my rights?

Brette's Answer: Didn't your mediator require that you each talk to an attorney? This is normally a requirement of mediation, so that both parties have an independent attorney who can fill them in on their rights and state law requirements. If you have not already talked to an attorney, I would strongly recommend you do so now. It sounds as though you most definitely entitled to alimony or an equivalent property settlement and a portion of the pension. Your husband should also talk to an attorney who will explain to him why you would be entitled to this. Do not agree to or sign anything until you talk to a divorce attorney. While mediation is a terrific option, there are some situations where having an attorney who can file some papers in court can really show your spouse you are serious and help to resolve things.

Are assets bought before the marriage split in divorce?

Tasha's Question: I purchased an ounce of gold before the date of marriage. Do I pay my husband half the value upon separation?

Brette's Answer: Items that you owned prior to marriage are separate property and not divided in the divorce.

Does everything have to be split 50/50?

Question: In a situation where the wife and husband are in a complete agreement in every detail of divorce, how amicable and uncomplicated is the so called "amicable divorce"? Also, if one party wants to keep only 20% of the family wealth, is this legally possible?

Brette's Answer: Yes, as long as it won't be perceived as grossly unfair. If both people agree on everything, you can file a settlement agreement which becomes the terms of the divorce, or you can do it on an uncontested basis. It's simple and fairly quick. If by family wealth you mean marital assets, you can agree to anything, however be aware that the court must approve it. If it seems unfair and there is no reasonable explanation, the court could reject it.

Is he entitled to half when I earned the income?

Carole's Question: I have paid all bills and had way more income. My husband sometimes could not work due to illness and when he could, either he would not work or apply himself to make $ on a commission-based income. Now he initiated the divorce of our 35 year marriage. He has made little to no contribution the last 21 years. He is 61 and on disability for 1 year. I’m 64.5 and want to retire soon. Is he entitled to half when I made the income?

Brette's Answer: Everything earned or acquired during marriage with some exceptions (gifts, inheritance, personal injury awards) are marital property and must be divided in the divorce. Talk to an attorney who can talk you through a break down as it would apply to your marriage. 

What if he is lying on the financial affidavit?

Alicia's Question: His financial affidavit he filed with the court contains lies and my lawyer says it "doesn't matter what he puts on his financial affidavit". He is saying his boat is worth $20,000 less than it actually is and that he makes monthly payments on bills that are not in existence as I closed them because I was paying them myself. Doesn't it matter when he is showing false info? Also, would my wedding ring still be my property as it was my mother's ring I was left in the will? Please help.

Brette's Answer: An engagement ring is always considered a gift and is separate property, so that's the solution to that. A financial affidavit is just his position. That's why there is a trial. You have the opportunity to get the boat valued and to show the court that the accounts are closed. Yes, the affidavit is supposed to be sworn to be true, but in reality it is just another pleading. Just make sure your attorney has a clear list of what the truth is so he or she can prove those points. Print out a blue book valuation for the boat and give your attorney the receipts for the accounts you paid off and closed.

Why is he saying we've had our assets divided for so long?

Marla's Question: After 35 years of marriage, I filed for divorce on the grounds of Cruel and Inhumane treatment due to numerous affairs and physical abuse. He counter filed and says our assets were divided 13 years ago. We were together at that time and even took an anniversary cruise. We have never been legally separated, have always filed joint tax returns, owned our house for over 30 years, and have a joint checking account. Why is he doing this?

Brette's Answer: Assets are usually valued as of the date of separation, so he's hoping to buy 13 years of increase value. You need to talk to a lawyer.

Topic: Do I have to accept his offer?

Carolyn's Question: Should I just walk away after 20 years with nothing but $100.00 (that is what my husband is offering)?

Brette's Answer: Your husband is not a judge and has no authority to decide what your financial settlement should be when your marriage ends. No one walks away with nothing, particularly not a woman who has been married for 20 years. Marital asset and debts will be divided by the court between the two of you. Call your local bar association and ask for a referral to an experienced matrimonial attorney. Call and make an appointment for a free consultation and find out what kind of settlement or judgment would be recommended in your case. Mediation is another option, but before you go to mediation you need to consult an attorney who can suggest a reasonable outcome in your case.

Topic: What if we can't reach an agreement?

Donna's Question: What is considered when both parties can't come to an agreement on who gets what? Say for instance if we both want a particular item out of the house, what is considered when deciding who gets it?

Brette's Answer: To be honest with you, a lot of judges don't want to get involved in dividing individual items. They don't have the time and it is very difficult to do. I don't know where you're at in your divorce process, but what is likely to happen is the court will urge you to go to mediation to resolve this. If that doesn't work, it's likely you would have a pre-trial conference with the judge or judge's law clerk, or matrimonial officer, who would really put the screws to your lawyers to get this worked out. It's quite rare that this kind of issue goes to trial. And if it does, usually the couple is able to agree on almost everything and there are only a few disputed items. In that case, the judge is going to look at the balance sheet to see what your total take away assets and debts are, find out who uses the item and for what, where it came from, who cared for it, and what it's worth. It's really in your best interest to try to resolve this on your own. You don't want to spend $200 an hour for your attorney to resolve who is keeping a $50 vase. Good luck!

Does all community property have to be listed?

Julie's Question: I am about to file for divorce after being separated for 8 months. I bought a car last year and he says that he doesn't want the car. Do I still need to list it under "Community property" or can I just leave it out since he says he doesn't want it?

Brette's Answer: Everything acquired during marriage is community property and must be listed.

Does adultery affect the division of property?

Kathy's Question: Does the grounds of adultery usually affect the division of property? I can't prove my husband had any physical contact, but can prove phone calls and a dinner date.

Brette's Answer: In some states, proof of "bad behavior" during marriage can affect the property division. See an attorney to discuss your state laws.

Is it considered abandoned property if he walked out 5 months ago?

Rosa's Question: My husband had an affair then walked out on me (and my dog) through a text message. He has been gone for 5 months now, is the property considered abandoned from his end or is he still entitled to half of everything?

Brette's Answer: No. He is still owner of marital assets.

Will I have to split the game consoles and games with him?

Tamia's Question: I have 2 computers and a collection of games I've acquired before and during the marriage. My husband also has 2 computers as well. He doesn't like playing the games in the game collection. I have a few consoles I've gotten for the kids as well. If I file for divorce will I have to split those things even if he's shown no interests in playing them before? I know he would just try to sell some of the rare ones I got when I was in middle school.

Brette's Answer: If the item was acquired before marriage it is separate property usually. An item acquired during marriage is usually marital property. However that does not mean that everything in a group of items is divided in half. Generally the total value of assets is totaled and you each should walk away with roughly half (check with your attorney on your state laws). So you could keep the games and he might keep something else equal in value. If you have a set of 4 dishes, you don't each take 2 (unless you both want to). Someone would take the 4 dishes and the other person would maybe get a set of 4 bowls for example.

Shouldn’t the insurance check be split in our divorce?

Jennifer's Question: We have filed for divorce and since then we had a storage building fire. The insurance check was in both names. Shouldn't it be split?

Brette's Answer: That will be up to the court since it is a marital asset and how they are divided is up to the court. Just make sure it is accounted for in the financial statements. 

Would he get half of my lottery winnings?

Liza's Question: OMG!!! I will be receiving a check for a considerable amount of money from a local lottery here in my state. My soon-to-be-ex and I have only just started the divorce process 4 months ago (before I learned of my winnings). Does he get half of it? What would be the best course of action?

Brette: The lottery winnings could be marital property, but before you do anything, you've got to consult with an attorney. Good luck.

Can she give the lottery ticket to me to keep him from getting half?

Question: My granddaughter has won a sizable amount of money. She and her husband do not live together or share a joint account. She purchased the ticket with funds from both of us. She does not want him to be entitled to anything because he has shirked all marital responsibilities. She has decided to gift the ticket to me or sell it to me. Which one would stop him from having any legal claim to her winnings? Can she turn her winnings over to me in such a way that he would have no legal footing to claim a share?

Brette's Answer: She should talk to an attorney before doing anything.

Do I have to repay him for everything he spent during our marriage?

Reiko's Question: My attorney filed the divorce last week and mailed the papers to my husband. He claims that he wasn't served properly, so now he is going to file the divorce himself and have papers served on me. Did my attorney do things incorrectly? Also my husband is saying that he is going to have me reimburse all the private school tuition for my daughter that he paid, all the cost of the vacations we took, plus the legal fees he paid when my daughter's father and I went through the custody arrangement. They will all add up to about 50K and I don't work. Can he do this?

Brette's Answer: I feel like I say this all the time when I answer questions, but it bears repeating. Do not listen to your husband. First of all, if you have a question about whether service was legal, call your attorney. He or she arranged it and will know if it was completed.

As far as your husband's ridiculous list of things he is going to win in the divorce, stop listening to him. He's full of it. Talk to your attorney. Listen to your attorney. Your husband wants to scare you and control you. Don't let him.

Is land that was paid for during the marriage community property?

Heidi's Question: About 8 months before we were married, my husband borrowed against his 401k to buy a 20 acre piece of property. The loan was around 240.00 dollars a month for about four years. We have been married for ten years now. We were also living together and engaged to be married at the time he took out the loan to purchase the raw property. Now that we are getting a divorce, he states that I am not entitled to any of that property because he borrowed his own money... My attorney says that doesn't matter - it was still a loan going towards property that we paid off together. I am very curious to find out what your second opinion is.

Brette's Reply: This is a question that I've addressed a lot. Your attorney is right. You're entitled to a portion of the increase in value from payments during marriage and from any improvements you helped with or which were paid for during marriage. Good luck.

Are improvements paid for with an inheritance marital property?

Nancy's Question: How does the law work when a couple owns a hobby farm and the wife put a large improvement on the place as in a building and fencing with inheritance money from her parents? I have also made a business using these improvements. Do I have any legal rights to that property or is it marital property.

Brette's Answer: The question will be if the separate property was converted to marital property. I suggest talking with an attorney who will discuss all the details with you and advise you how to proceed. It sounds rather complicated since there is also a business involved.

How would a livestock herd be divided?

Jill's Question: My husband is filing for divorce and states that he will get our 125 head of livestock. He had around 50 head when we got married 6 years ago. The herd has grown a lot since then, and I have put a lot of hard work into its growth over the years. How is livestock divided in a situation where some of them were separate property?

Brette's Answer: I'm no expert when it comes to livestock, but those acquired during marriage are marital property and will be divided. Those he owned before marriage were separate property but since you put work into them, you're entitled to a portion of their value. The question will be whether it makes sense to divide the herd or whether you should get some other asset (cash, securities) for your value instead. I think you should see an attorney who is experienced in this type of property.

How is property divided if he gives his daughter power of attorney?

Donna's Question: My husband is considering a divorce. He made his daughter power of attorney about a year ago and is threatening that I will get nothing if he decides to divorce me. He signed the power of attorney l week before he was admitted to a mental facility, is it legal?

Brette's Answer: There is no requirement that you name your spouse as your power of attorney. The fact that he designated his daughter has nothing to do with how property will be distributed in the divorce. Marital property must be divided by the court. If he is unable to make decisions himself during the case, his daughter can do so for him. If you are inquiring as to his mental state, a person needs to be of sound mind to create a power of attorney. Being admitted to a mental facility does not necessarily mean you are unable to make rational decisions.

How is everything split if I remarried my ex?

Deborah's Question: My present husband and I were married before. When we divorced the first time, I ended up getting the house and land as long as I refinanced. I couldn't refinance so he got the house back. Eventually I moved back in and he begged me to remarry him. Unfortunately, he hasn't changed and he told me I have 6 months to leave. He tells me there is nothing to split. Is this true?

Brette's Answer: Whatever assets and debts accumulated during the second marriage must be divided.

Can he take the things he bought during our reconciliation?

Rose's Question: I have been divorced from my ex for 2 years. I moved him back in after our divorce and now we are separating. Can he take what he bought in the 2 years we were together?

Brette's Answer: If you didn't remarry then you have separate financial lives. Unless you paid for it, it's his.

Gifts and Divorce

Topic: Who gets the wedding rings?

Robin's Question: Do I have to give my wedding ring back?

Brette's Answer: Engagement rings are considered separate property in most states since it was a gift given to you before marriage. Wedding rings are probably also considered separate property, although I'm not aware of any case law about this. In most cases, the engagement ring is the item of most value.

Will I be reimbursed if he took my engagement ring from me?

Christine's Question: If my husband claims the engagement ring is lost after he forcefully removed it from my finger along with a watch, am I entitled to the replacement value of these items?

Brette's Answer: The engagement ring is considered your separate property and not marital property. If he took it from you, he is responsible for reimbursing you for its value.

Can I sell my daughter-in-law's ring if she left it at my house?

Anne's Question: My daughter in law lived with me for 7 months and when she left she left her wedding ring with me. I have told her twice in the past year to come get her stuff and she hasn't done it yet. My son asked me to sell the ring set to help with the divorce. Can I sell it without her coming back and having me arrested for selling it?

Brette: If I were you, I wouldn't get in the middle of this. The ring belongs to her. It could be your word against hers as to how it ended up with you. It sounds like something your son ought to handle, not you.

Are gifts considered separate or marital property?

Janet's Question: When we were "happily" married, my parents gave my husband gifts such as some tools, and an air compressor. Going through the division of property, I feel he should not be able to take the tools that my parents gave him. My mom (my dad has since passed) says it was the intention that he use them for our house. His lawyer states he can take it because it was a gift. What is your advice?

Brette's Answer: I understand how you feel about this, but the law is quite clear. Gifts are separate property. Whatever was given to him by your parents is his to take and do with as he wishes. I know it's hard to do, but at some point you have to be able to tell yourself they are just material possessions and there are lots of things in your life more deserving of your energy and attention. Let it go.

Are gifts from your spouse separate or community property?

Chris' Question: Is the jewelry he bought me during our marriage considered part of the community property? I live in New Mexico.

Brette's Answer: Gifts are generally not community property and are separate property, but it's a good idea to ask your lawyer about laws in your specific state.

Will the gifts my parents gave me be split in divorce?

Kristen's Question: I'm Indian and my parents gave me jewelry & clothing during my marriage as it is a custom. I'm in the middle of a divorce and the husband is claiming these things in our 50-50 split. Can he do that or is that mine as my parents gave it to me during the wedding? Is it considered a gift to me? My parents worked very hard for that jewelry and I don't want him to have a single ounce of it.

Brette's Answer: Gifts are not marital property- they are separate property, as long as they were given to only you. They aren't divided in a divorce.

Is property given as a gift considered joint property?

Kelly's Question: We own a piece of property that was a gift to us for our first Christmas. It is in his name only, but the two of us went to the closing. He is trying to claim it as an inheritance now because his Grandmother bought it for us. Can it be considered an inheritance if she never owned it?

Brette's Answer: If it was a gift to both of you, it is joint property. However, just going to the closing does not mean it was also a gift to you. You would need some evidence - a note, letter, etc. or testimony from witnesses that it was intended as a gift to both of you. An inheritance only occurs when someone dies and leaves you property.

Is a check given as a gift community property?

Denyse's Question: My husband comes home and tells me his mother gave him a check for $4500.00 and that it's in his name only. Is it true that I am not entitled to any of it because it was a gift to my husband and my name isn't on it?

Brette's Answer: It is true that a gift can be to just one spouse and it does not become marital property unless converted to marital property.

How do I make sure monetary gifts from my Mom stay separate property?

Helen's Question: I am considering divorce.  My mother is slowing selling things and giving the money to me.  How do I make sure that money isn't considered marital money since she is "gifting" it to me only?

Brette's Answer: Keep it completely separate from all marital funds and keep records of how much you receive and when. 

Can my husband get half of the house my Dad gave me?

Carolyn's Question: We've been separated for 20 years. My father let me live in a house he owned, and signed it over to me as a gift a few years before he died. Would my husband be able to get half of my house?

Brette's Answer: Gifts are considered the separate property of the person they are given to and are not subject to division in divorce.

If I give money to a family member, will it be split in the divorce?

Question: My husband and I started living separately. We both are employed and my income & savings are more than his. Can I give some of my money as gift to my family member? Will the gift be divided 50/50 when we file for divorce?

Brette's Answer: Marital assets are divided as part of the divorce. If you give it away, it still is counted as a marital asset.

My Dad gave me a house? Why was it awarded to my Mom in their divorce?

Misha's Question: My father bought me a home a few years ago and then my parents got divorced. The judge granted my home to my mother in the divorce decree. Was this legal and can I challenge this judgment? I did not divorce her so why am I being punished?

Brette's Answer: You need to get an attorney. The issue will be whether he did this to remove assets from the marriage, to avoid a divorce distribution.

Would a cash gift by my employer be considered marital property?

Sarah's Question: I have been given cash gifts by my employer over the last 15 years and have put it in a saving account in my name and my daughters. Now my soon to be ex wants half. Is he entitled?

Brette's Answer: It depends on how the money was characterized. A cash gift from an employer sounds like a bonus which is marital property. A true personal gift is not but this could be difficult to prove.

Personal Belongings

Can his attorney legally hold my personal property in her safe?

Tracey's Question: My husband took some of my personal property, heirloom jewelry and my wedding ring to his attorney - at her request - and she is holding my property in her safe. How on God's little green earth can this be legal?

Brette's Answer: If a spouse has reason to believe the other spouse might waste (sell, dispose of) marital assets it is considered reasonable to have them held for safekeeping by the attorney. The marital property will be divided in the divorce by the judge if you cannot settle. You need to get an attorney.

Do I have to split the furniture I had before we married?

Pauline's Question: I am in the middle of separating from my husband. I have some furniture that I had before I had met him! Do I have to split any of that with him or can I just take what is mine?

Brette's Answer: Furniture you owned prior to marriage is your separate property. Furniture acquired during your marriage is marital property and must be divided. You may be able to talk this through yourselves and agree on who gets what.

Can I be reimbursed for the things we got rid of?

Dawn's Question: I got rid of all my personal things when I moved in with my husband before we were married because he already had a fully furnished home. (IE; TVs, beds, dishes, everything.) Now that I am divorcing him after 4 months, I have nothing and we have purchased nothing together as a couple. We didn't even have a shared bank account and I am broke. Can I be reimbursed for the things we got rid of?

Brette's Answer: No not unless you sold them and the funds became marital funds. You should talk to an attorney about spousal support and property division. 

What could happen if I remove the leather I paid for before giving the table back?

Jason's Question: In mediation, one of the final things was to hand over the coffee table which originally belonged to my spouse's family. While married, I bought all of the material to recover the leather on top of the table. What is the worst that could happen, if I remove the leather I paid for before giving it back?

Brette's Answer: We normally only answer questions from women, since this site is geared to women, but I thought this question deserved attention. Legally speaking, the leather you replaced is marital property - bought during marriage. Thus it belongs to both of you and is being distributed as part of your settlement. If the table has been distributed to your wife, you should hand it over in its current condition, with the new leather. Removing the leather is not only mean-spirited and petty, but will also be a violation of the court order (which your settlement will become) and you could be held in contempt for not fully upholding the order and you could also be cited for wasting or dissipating marital assets. Mediation is about cooperating. If you didn't agree to give her the table, you shouldn't have agreed to the settlement. In short, hand the table over, get over it, and move on.

Can he force me to leave my things with him?

Lisa's Question: I have been married 6 months. During that time I have been subjected to mental torture, verbal abuse, etc. Thankfully, nothing physical beyond cornering me and not allowing me to leave, taking MY vehicle from me, basically holding me hostage. I finally got away, had to make a run for it....and in doing so left all my belongings behind. He is now saying that I cannot have my things. He came into the marriage with only his computer, a backpack and a duffle of clothes. Everything else I had before the marriage. The only joint marital property is the house we recently moved into, and he can keep it. Can he force me to leave things with him, as he is saying he can?

Brette's Answer: Of course not. However if he won't cooperate, you'll need to file for divorce and get an order directing him to allow you to come to get your separate property.

How do I get my personal belongings back?

Lynette's Question: My husband of 88 days has moved out. Not only did he move out, but he took about $8,000 worth of my furniture and electronics with him. WE have absolutely nothing together. He moved in with me with a duffle bag. How can I prosecute him for stealing from me, and ultimately get back my items? They are very sentimental to me as my late husband who died 2 years ago left these for my children.

Brette's Answer: When you go to court, you simply tell the court he took your pre-marital property. He has no right to it and will have to return it or be in contempt of court.

How do I get my stuff back or get him to pay what it is worth?

Brenna Asks: I've been separated from my husband for nearly 4 years, still waiting for the papers, but everything in his house belongs to me and my parents. I had to take off in order to save my life, obviously just taking my suitcase of clothes. Everything, all the furniture, pictures, laptop etc. are all mine. How do I get the stuff back or get him to pay what it is worth?

Brette's Answer: You ask for it as part of the property division of the divorce.

How do I get my personal possessions out of the house?

Brenda's Question: Everything is in my husband's name. When I left, I basically "ran" out of the house and left everything behind (all the furniture, washer and dryer, etc.). I do not want anything from the house except my personal belongings and my daughters "bedroom". I do not want to deal with him, but how do I get the rest of my things?

Brette's Answer: If you feel it is safe, you can go back to the house when he's not there and take what you need. Have someone go with you to collect your belongings. Or you can have your attorneys arrange a hand off of the property. If he won't agree, you'll need to go to court to get an order disposing of the property.

Can he keep my stuff until everything is settled?

Pam's Question: After we separated, I went back to our apartment to pick up mine and the baby's things. He had the locks changed and he told me that I can't get my things until our divorce is settled. Is that right?

Brette's Answer: No, he's not right. You really need to get a lawyer if you can afford one. If divorce papers have already been filed at the courthouse, you can go to the next appearance and tell the judge what is happening. If that is not anytime soon, you can file an emergency motion to ask for help. At the least, you should get a court order permitting you to come in and get your things. Another option is to call the police, although that doesn't always work out. You might try having a friend or relative go and tell your husband to give you your and the baby's things and that might work.

What if he threatens to throw my stuff out?

Natalie's Question: I left my husband at the end of December and he told me today that I have 30 days to get my belongings out or he will throw them away. Can he legally throw my things away?

Brette's Answer: Well he can, but he would face repercussions once the case went to trial. That is willful dissipation of marital assets and will count against him. It would likely be easier if you went and got your stuff and got an attorney as soon as possible.

Topic: Can I make him move my belongings?

Renee Asks: We've been married for 12 years, and separated for six. I moved back to my home state because I couldn't afford to stay where we were, and everything I had in is storage and has been for 6 years. We want to process an uncontested dissolution of marriage, but I would like to stipulate that he help me move my belongings from storage. What do you feel would be reasonable monetarily to ask him to contribute to that cause? All I want are my belongings back before I sign the papers. Everything that we had in the way of furnishings and vehicles belonged to me before we married and those are the very same things in storage. Thank you for any advice you might be willing to share with me.

Brette's Answer: Why don't you just tell him that you'll sign the papers only if he loads up a U-Haul truck with your stuff and drives it out to you? Or that he pays to have movers move them? Tell him you'll sign them on the spot once your stuff is in your driveway. Whether or not a court would actually order him to pay to move your stuff seems iffy, especially if you're more financially stable than he is. Good luck with this.

How can I make him remove his stuff from the house?

Alleyne's Question: My husband tried to kill me six month ago. He then filed for a divorce and I am trying to get his personal items out of my house. The Judge who is handling the attempted murder case will not get involved in divorce matters, and so will not issue an order. These are things that belonged to him before the marriage. I want to get these items out of my house. I have a court order of protection, and I am not dropping charges. Any assistance would be appreciated.

Brette's Answer: First of all I'm so sorry about your situation and am glad you are ok. If divorce has been filed for, there must be a judge assigned to that case and that is the judge with whom to file a motion and ask that he be directed to remove his belongings by a certain date or they will be disposed of. The other option is to get your attorney to talk to his attorney and come to a similar agreement. Good luck!

Can he sue if he didn't retrieve his things within the court-ordered timeframe?

Nancy's Question: My divorce has been over for months. The judge gave him 30 days to remove stuff so I put everything in the garage for him to get. He says he should have been allowed in my house to get his things. He now wants to sue me for things he left here for months, demands replacement, and claims damages to properly he took from my house. Is this possible?

Brette's Answer: You followed the court order. You did nothing wrong. Talk to an attorney about whether you need to get a restraining order.

What’s the best way to return his stuff if we’ve been divorced for years?

Donna's Question: I have been divorced for 4 years and my ex left some personal things here for all that time. Now he wants the stuff, do I have to give it to him? Can he just come take it?

Brette's Answer: The simplest solution in a situation like this is to pack it up and leave it on the porch or driveway for pickup. There is no reason to let a former spouse into the home. You could find a lawyer to handle the transfer but that is expensive and time-consuming. 

I charge him storage for all the property still in the house?

Question: My husband moved out but still has not removed all of his property and our divorce won't be final for about 4 weeks. He doesn't want to pay half the mortgage since he has moved out. Can I charge him storage for all the property still in the house?

Brette's Answer: No you can't. Talk to your lawyer about setting a specific date by which he has to get it all out or you will dispose of it.

Is there any legal action to get my things back after the divorce?

Question: My divorce became final October of last year, but during the separation my ex took all of my belongings when he moved. I asked him repeatedly to return my things but I get no response. Is there any legal action I can take to get my things returned?

Brette's Answer: If your decree specified which items belonged to whom or that each would take what they had when they entered the marriage, then it is enforceable. You would file for a violation or enforcement.

Property Title and Ownership

How do I protect myself if everything is in his name?

Diane's Question: Everything is in my husband's name. How can I protect myself?

Brette's Answer: It's all marital property and will be divided, but until that happens, open a bank account and credit cards in your own name. Get your credit report so you will know if you will qualify for loans or to rent property. Get an attorney.

Can a check be made out to me if it's his name on the agreement?

Patricia's Question: We just separated and have a booth at an antique store. His name is the one on the agreement. Can I have half of the check made out to me?

Brette's Answer: No, but the money earned is a marital asset and has to be divided in the divorce.

Topic: Does it matter whose name is on the title?

Jeannie's Question: We have both talked about divorce, but the discussion usually takes a turn towards him saying, "This is my house, this is my car, and this is...because it has my name on it". Does it matter whose name is on the title when the property is split in a divorce? Since the car is titled in his name, would I have to technically "walk away" rather than drive?

Brette's Answer: If those items were purchased during the course of the marriage, they are marital property and must be divided in the divorce. Anything that is marital property belongs to you as much as him at this point. You should consult an attorney to talk about your rights in your specific state.

Is the farm marital property if he put my name on the deed?

Sheree's Question: He has a farm he owned prior to our 5 year marriage, but he put my name on the deed... we had to borrow money against some of the land. Doesn't this make this marital property if he put me on the deed?

Brette's Answer: Yes, it sounds like it is marital property.

Am I eligible for any of the assets my husband’s father put in his name?

Marie's Question: My husband and I have been married for over 20 years. I am now 60, newly retired, last child through college and suddenly he wants to leave me.  His father recently added my husband’s name to all of his assets for ease in taking over after my father in law dies.  In the event that my husband does divorce me, will I be eligible for a portion of those assets?

Brette's Answer: You should meet with an attorney who can look at your entire financial situation and determine what is or is not a marital asset and how your property would be divided in a divorce. Generally things received by gift or inheritance are not marital property unless they have been converted to marital property such as by placing into a joint account. 

Can he get equity in my mom’s house if I signed for her when it was bought?

Sara's Question: I represented and signed a purchase of a home on behalf of my mother because she was not able to come to the closing for the purchase of the home. I was personally going through a divorce at the time. The money for the purchase of the home was coming from her account and was wired directly into the closing attorneys account. I sat there on behalf of her only. I signed the documents for the purchase, and right away I also signed a document to quick deed the property over to her. My ex-husband (after our divorce) is now trying to say that he has right to this house as it was bought during our marriage. I pray this is not so.

Brette's Answer: You should talk to an attorney who can review the facts and explain your state law.  Property is normally divided as of the date of separation and this seems to have occurred after that. Additionally, assets received as gifts are generally considered separate property. 

Is my 2nd husband entitled to any property from my first marriage?

Cheryl's Question: My first husband died after 17 years of marriage. I remarried and am now filing for divorce. Is my new husband entitled to my inheritance or real estate property? Everything is in my name because it was prior to my marriage.

Brette's Answer: Everything from before your marriage is separate property and will not be divided in the divorce.

How will the house I got in my divorce be classified if I remarry my ex?

Virginia's Question: I was awarded the house in my divorce. If I remarry my ex, will my house be considered community property or will it remain solely my property in the new marriage?

Brette's Answer: You should talk to an attorney in your state about specific laws in your state. In general separate property is separate property and it doesn't matter whether you bought it yourself or got it in a divorce. What you do with it after the marriage likely has an impact on how it will be looked at in the future though. 

Can we still own the house jointly after divorce?

Jeannie's Question: We own a beach house together in Texas, and would like to get a divorce. Can we divorce and still own the house jointly, with terms for payment and sale set out in the divorce papers? It is on the market but in this economy it is not selling.

Brette's Answer: Yes, many couples divorce and retain joint ownership of property. Some do it indefinitely. Others do it until it can sell.

How can I protect my assets if I remarry after divorce?

Kristy's Question: I have been divorced before and lost everything, filled bankruptcy. I have started over. I have bought a house and car in my name only. I have met someone and we're talking marriage. Being burned before and now I have questions. If this doesn't work is he entitled to my property since it was mine before we ever met?

Brette's Answer: Get a prenuptial agreement. If you feel strongly about this, it is the only way to completely protect yourself. It won't cost very much and it will give everyone peace of mind. Good luck.

Work Benefits and Divorce

Am I entitled to part of his bonus from work?

Hilary's Question: My husband received a bonus upon switching firms, which was prior to my filing divorce. Am I entitled to this money?

Brette's Answer: All assets acquired during the marriage will be divided in your divorce. This doesn't mean you automatically get half of that bonus, but the bonus is added into the pool of all marital assets that are divided.

Topic: Severance pay and divorce

Lori's Question: I was let go from my job and received a severance package where I will receive a full paycheck twice a month for 6 months. If I proceed with the divorce, is my husband entitled to half of my severance package? What about the overtime that he works and side jobs? Am I entitled to that?

Brette's Answer: You and your husband can reach any agreement you feel is fair about your property settlement. You should consider seeing a mediator who can help you reach an agreement together. If you go to court any money earned during the course of the marriage is considered a marital asset and can be divided.

Lawsuits and Settlements

Topic: Are Personal Injury Awards Considered Separate Property

Elizabeth's Question: My husband and I are separating. He sued a company for falling into a hole on their property. Am I entitled to any of that money?

Brette's Answer: It is unlikely. This type of settlement or award is considered separate property and is not considered to be part of the marital estate which will be divided in a divorce. You should talk to an attorney about your financial situation and how your property would be divided.

Will I be entitled to half his worker's comp settlement?

Ellen's Question: Will I get half of a settlement for workman's comp for a head injury?

Brette's Answer: Probably not, but you should check with an attorney to determine what your state laws are.

Is he entitled to any of my disability lump sum payment?

Tamecia's Question: If I received a disability lump sum, is my husband entitled to it? When you start the asset dividing in the divorce, how far back do they check your bank statement?

Brette's Answer: Asset division usually occurs from the date of separation. Disability benefits may be considered marital property. The best thing to do is schedule a free consultation with an attorney who can look at all of the facts in your case and explain your particular state laws to you.

What if a personal injury award was used to pay the mortgage?

Elizabeth's Question: I had received some funds from in injury claim. We paid that towards mortgage payout. Can I retrieve that before we split the assets?

Brette's Answer: It sounds like you took a separate asset and converted it to a marital asset. You should consult an attorney who can consider your entire situation and give you personal advice.

Is he entitled to the settlement I received before we married?

Mandi's Question: If I received a large settlement from a case regarding my mom's death and a company paid me a certain amount of money when I sued them - does my husband have rights to this money at all? It was acquired before the marriage.

Brette's Answer: It sounds like the money is separate property, but you need to consult with a lawyer to be certain.

Investments / Stocks / Royalties

Topic: Negotiating Stocks during Divorce Settlements

Theresa's Question: I have a large sum of money in stocks. Is there a way I can get out of giving him half of my stock? It was all acquired during the marriage.

Brette's Answer: You can reach a settlement with any terms that the two of you can agree on. If he agrees to let you keep it, perhaps in exchange for other assets, you have no problem. I would suggest trying mediation before going to court if you're unable to reach an agreement.

Are stocks owned before marriage split in a divorce?

Question: My friend has stocks that were hers before she married. Her husband says that he is due half of the interest accrued since the marriage to the date of filing for the divorce. Is this true?

Brette's Answer: If she kept them separate and did not put them in joint names they remain separate, unless he did something to add to their value.

Topic: Dividing Stock Options after Divorce

Sheryl's Question: I was divorced three years ago. Per our divorce decree, he was awarded one half of the vested stock options as of the date of the divorce. He has not taken his stock options out and the company stock has doubled. Does he get the split options as well?

Brette's Answer: You should consult your attorney. If he was to get half the *value* he is entitled only to the value as of the date in the decree. If the stock was to be transferred to him, whatever has happened to it since is his.

Is he entitled to royalties from my book?

Jeannette's Question: I have self-published a couple of books. Now that I'm getting a divorce, my husband's want rights on my books. Is he entitled to the book rights?

Brette's Answer: Intellectual property is marital property and the value of it will be included in the property that is to be divided. He may be entitled to a percentage of future royalties. You need to speak with a lawyer in your area.

Is he entitled to any royalties if my manuscripts haven't been published?

Kaycee's Question: I have been married for 10 1/2 years and filed at the beginning of April. I have been writing some manuscripts for fiction books over the past 2 years; nothing is under contract to be published or anything. My husband keeps threatening to take any royalties or income that may be incurred in the future?

Brette's Answer: Intellectual property is divided during property division in a divorce. An attorney can help make sure your property settlement is structured so that you will retain all the rights. Good luck.

Would he be entitled to my royalties if he defaulted on the divorce?

C's Question: I filed for divorce and he never responded to anything regarding the divorce - personal service, the settlement agreement offer, the notice to take depositions, nothing. Because of his purposeful non-responsiveness, my attorney petitioned the Court to enter an Order finalizing the divorce, which they did. Can he sue me now for royalties and other marital property, or file an injunction on my royalties? What would he be entitled to? Most of the songs that actually pay anything were written before we were married.

Brette's Answer: Your divorce is final. All of your property has been divided. It's over.

Pets and Divorce

How is it determined who will get the dogs when we divorce?

Loretta's Question: When I moved out I had to leave two of my dogs behind as I didn't have a job yet or a place for them. I have both now and have asked for the dogs. He said he would give me one of them, but not both as his daughter wants one of them. Do I have the grounds to ask for them and get them when he files for divorce?

Brette's Answer: Dogs are considered property and as a result are divided in the property settlement. You can ask for the dogs. Although they are considered to be property, judges usually will take into account the person who can best care for the dogs and who has the greatest bond with them, so you can make the case for why you should get them. Good luck.

How do I prove ownership of the dog?

Sara's Question: My husband adopted a dog for me during our last year of marriage - my dog is only licensed under me with the town and vet. He is going after joint custody - wants weekend visits. My children and I have always been responsible for the dogs care - what do I need to prove sole ownership?

Brette's Answer: It sounds like there is a good argument that the dog was a gift from him to you. That's one way to approach this. Another is definitely the impact it would have on the children to have the dog split its time. And you could put together evidence about who has always cared for the dog and get your vet to testify if necessary.

Can I give my dogs away so he can't take them away from me?

Ali's Question: When my husband told me he wanted a divorce 7 months ago, he told me I could keep our two dogs since he couldn't take care of them. Now he is saying that he wants one of them. I know that it's not a good idea to separate my two dogs because they developed a strong bond. Joint custody is not an option because he is verbally abusive and can be physically abusive as well. Would I be able to legally give my dogs away to a friend or family member so that he can't take them away from me? Since he did give them up 7 months ago, does he still have any rights to them?

Brette's Answer: Dogs are considered property and technically are divided like marital property, although more and more judges are willing to make decisions about pets similar to the way they make decisions about children. If you give the dogs away, you'll be responsible for the value of the dogs, and a judge might also be unhappy with your actions. I would suggest you talk to an attorney to find out how this is handled in your jurisdiction before you do anything.

Can he sue me for pet care if he has the dogs?

Kimberly's Question: My ex-husband and I divorced 6 months ago, but I only recently moved out due to special circumstances. He is the sole owner of the pets and is now telling me he is going to sue me since I'm not giving him money for their care. Can he do this? This wasn't something in the divorce papers at all or anything we discussed.

Brette's Answer: If pets were not discussed in the divorce papers, whoever had them is responsible for them. You aren't obligated to pay anything.

Can he dispute the divorce to get the dog back after all this time?

Heather's Question: When we divorce almost a year ago, we did not list our pets in the divorce agreement. He took one of the dogs and then 2 weeks later gave him back to me. I've now had the dog for over a year and he all of a sudden wants him back. Can he dispute the divorce decree to get the dog back now? Also he claims he signed uncontested papers under duress. Can he have our divorce overturned by claiming that?

Brette's Answer: It would be very unlikely the court would make you give the dog back after a year. Although more and more judges are now considering what is in the best interest of the pet. However after a year it would be unlikely. If your ex cannot prove someone forced him to sign the papers they are valid.

Property after Divorce

What if he won't return my stuff like the divorce stipulated?

Debra's Question: My husband was physically abusive and I was forced to flee while he was at work, taking only what I could at the time. In the divorce it stipulates what items I can get from the house (mostly sentimental personal belongings). The trouble is he has outright said I cannot get my things. How do I get them? Is there a way to have a Police Officer go with me?

Brette's Answer: You could call the police, but I don't know for certain what their response would be. If they won't help you, you need to file a petition for a violation with the court and just ask that a day and time be set up for you to go retrieve your items.

He says he won't split any of the furnishings we got while married.

Mickey's Question: We are already divorced, and the home was his before marriage, but he will not split the furniture and furnishings that we acquired during our marriage. He only allowed me to come and get my personal belonging and told me that was all I was getting. My attorney is not moving on this, how can I get some of the furniture?

Brette's Answer: Tell your attorney that you want him to request that the personal property be distributed by the court. Good luck.

What should I do about property he leaves behind?

Carol's Question: In the divorce, I was required to sell the house. I have given my ex several chances to get what he wanted from the house, and he said that he did. There are still some cars left on the property, and I want to get rid of them before I move. I have told him, but he has made no effort to get them. How can I protect myself if he gets mad at me for selling or junking these cars?

Brette's Answer: You could send him a certified letter giving him a date to remove them by or you will have them removed. Then you will have proof that you gave him adequate notice.

Am I required to ship his things to him after the divorce?

Marie's Question: My husband called me today to say that he's not coming back. He wants to send me money to ship his things to him, but I feel I need closure. I feel like it's just wrong to do this to me on the phone and not in person. I'm not saying he can't have them; I just don't want to pack his things. I'm bothered by this. What is the legal issue here?

Brette: You're not obligated to ship anything to him. You have to give him access to his belongings, which you are willing to do. If he wants it, he can come and get it, or authorize someone else to get his things on his behalf.

Can he come get stuff after the divorce is over?

Sherry's Question: Two and one-half years ago, my spouse abandoned the house, leaving me seven months behind in all bills. Mother bought the house to prevent foreclosure. He was told to take everything he wanted and all that belonged to him. Our divorce was finalized two weeks ago. Now I receive a letter from a paralegal stating he wants items from the house, including the bed his stepson now sleeps in. Can he take these items after this long? I thought after the divorce was final, it was final.

Brette's Answer: It depends on how the divorce is worded. If it says all personal property has already been divided, then it has. He can always seek to go back to court over these items. It seems as if the simplest way to approach this would be to reach some kind of compromise.

Do I have to give him half the furniture 5 years after our divorce?

Anne's Question: After being divorced for 5 years, my ex-husband has now decided that he wants half of the marital gifts/furniture we acquired during the marriage. He says he left it all with me because he didn't want to upset or disrupt the kids' lives by taking it but now that I am moving and getting re-married, he wants his half. Do I have to split the furniture etc. with him?

Brette's Answer: No, if your divorce decree does not require it.

Can he make me pay for items I do not have after our divorce?

Caitlin's Question: My husband came to pick up all of the property awarded him in the divorce. The police supervised him loading his stuff because I have a protection order against him for domestic violence. After everything was loaded, he told the police he had everything and was "satisfied" and left. Two of my friends, by request of my attorney, filmed the entire removal. Three months later he has filed a Small Claims lawsuit against me for items he said he didn’t get. One of the items, a scooter, he has already had in his possession prior to the divorce and the other items I don't have. He had been gone out of the home for 3 years before we got divorced. Can he make me pay for items I do not have?

Brette's Answer: You should contact your attorney about this. It sounds as though this is simply a nuisance suit. Small claims court is not the appropriate court for enforcement of a divorce judgment and would likely be dismissed. 

Tax Issues in Divorce

Will I owe taxes on property I receive in the divorce?

Rondolyn's Question: My husband is to sign over one of the cars we have into my name. Will I have to pay any taxes on a car that is in his name that he signs over to me in the divorce?

Brette's Answer: No. Property transfers as part of a divorce are not taxable income.

Can a spouse buying out the equity claim it as a deduction?

Corinne's Question: I understand that equity in the home taken as cash in a property settlement is not taxable income. However, can the spouse who paid the equity claim it as a deduction or as an expense on their tax return, similar to closing costs?

Brette's Answer: If it is part of a property settlement is not taxable income nor tax deductible for the other person.

Is a lump sum property settlement taxable?

Question: If I am getting a cash lump sum property settlement from a divorce, is it taxable? Instead of property, he is giving me a one-time cash settlement which is stated in the divorce papers as a lump sum.

Brette's Answer: You should always consult with your attorney about the taxable nature of lump sum payments in divorce. The settlement has to be written carefully to distinguish between alimony and property settlement.

Am I entitled to part of the tax refund if we aren't divorced yet?

Pauline's Question: My husband is going to get his tax refund back in a few days. The taxes were filed on March 31 and we did not separate until April 3. Am I entitled to half?

Brette's Answer: If it was filed as joint married, then it belongs to both of you. It has to be accounted for in your divorce settlement.

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