Tuesday, July 29, 2014

Who Gets the Harley?

Who gets what personal property in a divorce?  There's a joke amongst family lawyers that the man receives everything that reclines or plugs in, and the woman gets everything else. 

Of course it's not quite so simple, but there's a morsel of truth to the general rule that pieces of personal significance go to the person for whom the item was acquired.  Sadly, when a spouse feels
particularly injured, the need for retribution often makes those items of personal significance to their partner highly attractive.

Then, it's off to the races, yet it's not the teacups the couple is sparring over.  The goods are rarely the issue, it's usually much deeper.  The tsunami of divorce brings with it horrific waves of emotion, anger, fear and yes, greed.  Rational decision making may not resurface in time.  One particularly fastidious doctor chronicled everything down to the remaining tablespoons of conditioner in his wife's shower.  She was not pleased.  Hair washing accelerated. 

Another highly successful client, a former Fortune 500 CEO, had amassed an impressive collection of new and vintage Harley Davidson motorcycles.  In retirement, these bikes had helped him redefine his lifestyle--one that did not include his rather prim and disinterested wife.  Trips to national biker gatherings with other "HOGS"were not the lady's cup of tea.  The couple spent less and less time together.  One particular "Fat Boy" was the man's pride and joy.  Guess which cycle the wife set her stubborn eye upon?  The petite femme even took riding and safety lessons so that she could claim she had the ability operate this heavy machinery.  The cost of the dispute far exceeded the value of the bike.  The missus eventually prevailed, but she paid a premium.  Now the ex wife has an expensive and dusty motorbike parked in the garage.  Last time I ran into the client, he was driving a gorgeous custom version of the same bike, with a like minded lady on the back. 

What if Harley's the family pet?  The Courts define beloved animals as personal property.  Thus the rules for division of Cuddles the cat are the same as the family room sofa.  Who purchased the pet?  Is the pet registered or titled in one spouse's name?  Will the children benefit from the presence of Fido, or the sofa for that matter?  The best interest of the dog are not considered.  A dollar value is placed on the animal.  There may be a bidding auction.  Sounds cold, but the Courts are so clogged up with disputes over biped children that there's simply no time for the poor four legged creatures.

Inherited goods like grandma's sideboard usually go with the grandchild.  Gifts go to the recipient, often including expensive jewelry. Be careful when turning over Great Aunt Sophie's ring. 

The bachelor leather sofa comes out of the basement and leaves on his truck.  The kids' property goes with the custodial parent, but each side should take familiar toys and items to ease the transition with familiarity.  Remember that little eyes are always watching the goings on--so be the adults and make it okay for them. 

Early in the process, I advise clients to take individual photos of most  belongings because things do disappear. Once that occurs, it's much more difficult to establish existence or value.  Create a spreadsheet, particularly of valuables such as tools and collectables.  Include a photograph, purchase information if available, and estimated fair market value.  A good source for current value are EBay and other auction sales sites.   Insurance appraisals provide another valuable  reference.

Judges do not use acquisition or replacement costs.  In the end "street value" rules.

There are arbitrators who specialize in the division of personal property disputes without the use of counsel.  Most attorneys are thrilled to turn these disputes over as few wish to become involved in the fray over the toaster.  A favorite arbitrator often shows up on moving day with a folding chair.  Disputed items are piled in the garage.  With truck engines running, a coin is tossed and the winner gets to pick their first item.  The loser gets the next two picks and the rotation continues until  all the boxes are loaded.  No one goes home happy, but they all go home.

It's easy to say "it's only stuff" but we define ourselves by our belongings and take years to accumulate things of personal importance.  In divorce, as in life, it's a balancing act.  Is this item irreplaceable?  Is the protraction of litigation better than beginning the painful process of restarting
your life.  In most cases it's not.

Just be sure to get a good price for the darned thing! 

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