I’m Moving Out Before The Divorce Is ‘Final.’ What Can I Take?
One of the most common things that a divorce lawyer hears from a new client is something along the lines of “My spouse and I have decided to get divorced. I want to pack my bags and leave, but I don’t know what I can take. What should I do?”
First, you should think about whether now is the right time to move out. Leaving the marital home without preparation can lead to tricky legal situations down the line. What you may think of as a short-term situation can become long-term as fighting over control of the marital home and other marital assets can take years. You should consult a lawyer so you understand the short and long-term ramifications of moving out.
Ruppert Law Firm LLC is here to help you figure out what is best for your particular situation.
Assuming that the timing is right for you to move, you should take only things you don’t foresee fighting with your spouse about during divorce proceedings. Personal belongings like clothes, shoes, medication, toiletries and identification are generally safe to take. Anything covered in a prenup should be able to be taken without major consequence. However, everything else is highly dependent on the situation.
If at all possible, you should get the agreement of your soon-to-be ex before you take anything. Having this agreement in writing (even if it is just a text message) can show that you were acting reasonably if there is ever a dispute. A helpful exercise for you and your spouse (if your relationship is somewhat amicable) is to make a list of the items in the house, and divide it into three categories:
- Things you had before your marriage
- Things you got during the marriage
- Things you got after you decided to separate
From there it should be fairly easy (if both sides can be reasonable) to divide up your possessions, even if only on a temporary basis as you are feeling out the transition.
If you are not in a situation where you and your spouse can communicate effectively, then it may be necessary to take what you must now, and sort it out later. We still recommend making the list described above. A good rule of thumb as you are looking at the list is this:
Don’t take it unless you can explain to a judge why it’s yours … because you just might have to.
Keep an inventory of everything you take with you, and don’t get let go of anything that may be of value once you leave. At the end of the day, you may have to give some of it back when the divorce is finalized. Even if you don’t have it anymore, you may be stuck giving back the value of the item.
Scan (or make copies) of any important paperwork you don’t think you’ll be able to get access to after you move out. Take pictures of items of high value. If you have children, make a parenting schedule before you leave. (More on custody during the separation process here). Even if you believe the process will be amicable, it is important that you have plans in place to protect your access to your children, and your property, if your divorce becomes contentious.
The most common methods for splitting marital assets during a divorce are:
- Mediation: This is where the parties to the divorce forego their own counsel and hire an attorney to act as a “neutral” party in helping them to negotiate their own agreement for distributing their marital assets. The mediator does not represent either party and acts to facilitate the conversation so the parties can come to an agreement, rather than advocating for any specific outcome. Either party can pull out of the mediation process at any time. If that happens, the mediator cannot represent either person in court and must keep everything told to him/her strictly confidential.
- Collaboration: Similar to mediation, the collaborative process involves hiring an attorney to act as “neutral” in the process. Unlike mediation, each party also hires an attorney to advocate for them. It is not uncommon for the process to include other professionals as well, like financial planners, tax specialists, and psychologists. All professionals that are hired should agree that if the process doesn’t work that they will not represent either party in court.
- Litigation: This is the most common method for resolving a divorce, but it doesn’t necessarily mean that you will end up in a “divorce trial” where a judge has total authority to impose their ideas on how your assets should be divided. In reality, most divorce cases go something like this: One party files for divorce, and both sides get attorneys. The attorneys send various offers back and forth for how the assets (and debts) should be divided, and eventually, the parties come to an agreement before the looming court date. However, if no agreement is reached, then you will have to testify in front of a judge, and that judge will decide for you.
Hiring separate attorneys to negotiate a divorce settlement agreement that both parties compromise on is generally the most realistic method for resolving a dispute. If your spouse already hired an attorney who drafted a divorce settlement, you should always consult with your own attorney to make sure the agreement is fair to you before you sign it. We at Ruppert Law Firm will work hard to make sure you get everything you are entitled to under the law while guiding you to compromise when necessary so that getting a divorce is as fair, stress-free, and timely as possible.
When negotiating a settlement, though, your leverage is that you may push it to a divorce trial. Going all the way to the end is the most expensive and time-consuming, but sometimes you may not have a choice if your soon-to-be ex wants everything his/her way. Unlike a community property state, in which all marital assets are split 50/50, Pennsylvania law dictates that all assets will be divided by a judge who determines who gets to keep what on a case-by-case basis. The only things you are guaranteed to keep are things you owned before you were married, property that was listed in a prenuptial or postnuptial agreement, gifts or inheritances from someone other than your spouse, some veterans’ benefits, the property you acquired after the date your divorce was filed (unless you bought it with money from a joint account), and any payment dispersed as a claim from before or after you were married, regardless of when it was paid. Marital debt like mortgages, loans, and credit card debt is also usually equally divided. Sometimes going to court is necessary to ensure you receive fair treatment, and we can help.
To summarize, when you are moving out after filing for divorce:
- Make sure moving out is what’s best for you.
- You can take personal property like clothing and toiletries, anything you had before the marriage, and anything you bought with your own money after separating.
- Document as much as possible so your future settlement finishes as smoothly as possible.
Getting divorced is hard. Being divorced is good. We’ll get you through it.