Separating items


#1

If the personal items such as furniture and appliances were given to the marriage then they would be considered marital assets. The items bought during the marriage would of course be marital assets.
I was in the same position when my x and I split up…all of MY stuff was gone. The only thing positive was that he did feel guilty enough to help me get an apartment and to replace the furniture that I had gotten rid of prior to us living together.

As far as you giving up things, I assume that you mean you are in the marital home and he wants his personal items and items he brought into the marriage out of the home? You are correct, you do not have to give up anything until ED is established unless there is an agreement. Have him get a separation agreement and have it name items that he believes are his. If you do not agree to what is listed, then change it.
My husband’s ex mother-in-law left her husband and took all of his stuff with her. She left quite a bit of her stuff with her and what she didn’t take with her wasn’t worth much. He had to get a court order to get things back from her, like his shoes, clothes, even his toothbrush…
You are married so everything that either of you have belongs to the other legally. You each have your personal items like clothes and stuff but legally it all belongs to you both. The one that has possession at the time of separation is the one that has all the bargaining chips.
This is often the same with the children…if the children are with one parent primarily during the separation it sets a standard that could be followed when custody is filed for.


#2

Stepmother, I absolutely love how helpful you are!!! You have eased my mind tremendously. Do I understand this correctly. Even though it is his pre-marital furniture, tools,lawnmower,etc. I am sure you understand he means everthing, but because it was brought into the marriage they are both of our items except clothes and personal items.
Also, for 8 mos now, I have had kids all overnights. He gets them day time e/o weekend and 1 daytime after school. I am hoping the courts keeps this the same.


#3

As far as the items, if he were to get the police involved at this point, providing that you are in still in the marital home and have no separation agreement, then they would come with him to get his personal items (clothing, toiletries, and maybe some other necessities). Since there is no agreement, that is all that they would allow him to get. He will need to file for Equitable Distribution and take it to court to get anything that he did not take with him when he left.
That being said: The most important thing to remember is to pick your battles. If he has the money to take all this to court, then the court could very well decide for you to turn over all the items he’s requested and grant joint custody of the children. In deciding which battles to fight ask yourself these questions: Can I live without this? Can I replace this? Is this worth the thousands of dollars it will take me paying an attorney to go to court over this?

Always fight for your children but make sure that it’s a fight you can win. More and more judges are agreeing that joint custody is best and it takes a lot to prove that someone is not fit to share custody. It’s not impossible, but it’s difficult.

As far as the children are concerned…I will say this. IF he is involved in their lives and wants to continue to be involved then you should consider allowing him to keep them overnight for joint physical custody. Child support is based in part on the number of overnights the children are with each parent and the way that this is now, you have primary physical custody. NC defaults to joint legal custody unless by agreement or order. It may cut down on the amount of child support but I only suggest this because though he may not have been a good husband he may still be a good father. Take into consideration that what is normally best for the children is that both parents are as involved as possible.
This could all be put into the separation agreement also.

Good luck and keep us posted.


#4

Ok now I am lost again. Lets try it this way. When we married, I sold my household items, bought new with the money. Be kept premarital items ie. bedroom outfits,livingroom oufits, dining room outfits,lawn care items…and so on. Because we married are they marital property or do I have to give all these back.
My child custody issue is a huge issue and long explaination. Bottom line he is in trouble for DUI and an injury accident. I believ this prevented him from overnights with kids. Has a felony with unintentional harm judgement against him. Has not been resolved yet.
Anyway, my issue is more to do with he wants everything from in the house he bought before marriage back. Not fair since I had to sell all my belongings.


#5

Do you have a separation agreement that you signed? If not, then no. He will need to take this to court and file for equitable distribution to get any item he did not take with him when he moved out. He can have a police escourt to get his personal belongings, clothing and toiletries (toothbrush, hairbrush, cologne) but to get anything else he will have to go to court. NOW the question remains that if he does want to file an ED claim and can, he is entitled to 1/2 and the court will likely divide up these items between you.

If your children are in danger and the arrangement you have is working then don’t change anything. This was just a suggestion that you think about joint custody before this becomes permanent…


#6

We have a very vague separation agreement. Doesn’t say anything about what is mine or his or anything about ED.


#7

I think it would have to be specific to force you into giving up the items he is requesting. As long as you keep in mind that IF he does get a claim for ED into court, it’s likely that the court would divide up these items.
Normally a separation agreement can cover this type of thing so that it doesn’t have to go to court but if it is a signed agreement then it’s legal and maybe more research should have been done before he agreed…
Good Luck!


#8

If you sold your furniture and used the same funds to purchase new furniture then that furniture is still your separate property and you can claim it as such. If you sold your furniture and then put that money into a payment on your house, then that money is marital money and would be divided upon equitable distribution.

If the contribution you made was significant, you could argue this as a factor that justifies an unequal distribution of property in your favor. This argument has a great chance of succeeding if you have only been married a short period of time.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#9

If a seperation agreement states he can have his “personal tools”; what would be considered as such?
STBX wants items used to maintain house; yard tools, shop vac,ladders,power washer. Tools in my opinion are, wrenches, screw drivers, tool box and the like.
He is ready to file contempt charges. Stepmother suggests picking battles; but if I gave in on everything I would have nothing - I paid for these things in the settlement/mediation.

Any thoughts or suggestions on description of “personal tools”?


#10

I am starting to think I do not have a separation agreement. We have separation papers and he was allowed to get 1 br set,another bed, sofa and chair and I think that was all it stated he could get. He tried to take tv and other things but I said no and told him to leave. Had a restraining order at the time so he left. I think that is all that was stated for him to take. So if there is nothing in writing and he brought all this to the marriage 61/2 yrs ago, does that mean we have to split it all up. I gave 40,ooo from profit of my house, another 40,000 from profit from a rental I sold to help contribute to him opening another business for us, and 10,000 in cash because I thought that is what you do when you are married. Don’t understand why all this is marital property but not furniture, tools, etc. thanks


#11
quote:
[i]Originally posted by Baba[/i] [br]If a seperation agreement states he can have his "personal tools"; what would be considered as such? STBX wants items used to maintain house; yard tools, shop vac,ladders,power washer. Tools in my opinion are, wrenches, screw drivers, tool box and the like. He is ready to file contempt charges. Stepmother suggests picking battles; but if I gave in on everything I would have nothing - I paid for these things in the settlement/mediation.

Any thoughts or suggestions on description of “personal tools”?


When I suggest picking your battles it was in response to kblack03 asking about not giving in on ANYTHING her ex was asking for. If you paikd for things in the settlement, then they are yours. There is no battle. If the settlement/mediation was not clear enough for either of you then that may mean you need a judge to clarify specifics. I, like you, would think personal tools to be considered hand tools and possibly some small power tools, but the ladders, lawn mower, these larger priced items I would think would need to be compensated for if they are taken…


#12

My situation, my spouse tried to keep everthing. Don’t give up anything until agreement is made on who gets what. If you don’t, he could manipulate you into givingup more than you should.

ldb


#13

The only way to know if you have a valid separation agreement is to review it with an attorney.

P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#14

Unfortunately for me, my stbx has had lots of experience with divorec. When we married he made me get rid of everything and I mean everything. We kept all his furniture and sold mine. Then we bought more. He claims this that and the other is his. Do I have to give it up so easily since all my personal items were sold and put to use for our house. Of course, I have no record of anything purchased because I never knew I should. I was told that if he can’t produce proof than I don’t have to give anything up until we negotiate who gets what. Is this true?