Divorce and Personal Property: Who Gets the Pots and Pans (part 1)

By: Stephen J. Plog

As experienced Colorado divorce attorneys, we are extremely familiar with the numerous issues people might argue over in any case. As stated in prior blog posts, the primary issues in any divorce case can be child custody, spousal support (maintenance), child support, division of debt, and division of property.

Also in prior blog posts, I have discussed various aspects of property division, as well as various types of assets and the norms for distribution or allocation in a Denver area divorce. This has included divisions of real property, business assets, and retirement accounts. Though division of major assets can present as an issue in any case, there is one property issue that arises in almost every case, that being the division of tangible assets in the home.

Over the course of a marriage it is common for people to obtain tangible property, stuff, with which to fill their homes. This can include furniture, tools, artwork, china, children’s toys, and pots and pans. Essentially, anything tangible is divisible property.

Before delving into how courts, and attorneys, deal with tangible property, I should remind the reader of some basic rules for dividing marital property. Marital property is any property acquired during the court of the marriage. There are some exceptions, such as property received by gift or inheritance or property obtained through premarital funds which never becomes jointly titled. Another general rule of thumb, though not an absolute, is that Colorado judges will generally divided marital property equally, though the statutory standard set forth in C.R.S. 14-10-113 is “equitably.” These norms apply to any property, including household items.

When discussing aspects of a divorce with clients, the issue of how to divide the household items inevitably comes up. While the couches and chairs may seem minor when compared to a house or a 401K, they still matter to the parties. However, when these issues arise, we are forced to inform people that though their household ‘stuff’ might matter to them, courts will generally find the issue to be of minimal importance. This is not to say that our courts do not care about how to divide the furniture or pots and pans, but rather, that courts generally presume people should be able to work this out on their own and don’t want to see judicial time spent with argument over less important issues.

The above stated being said, courts will get involved with division of tangible household items if need be, though the outcomes may not quite be what people are looking for. From a lay perspective, one might think that the court is ready for each party to come to trial with an inventory of marital, household items and perhaps pictures to back up that list. They might also presume that the judge is ready to wade through that list and do the brain damage of going through the items and fairly dividing them. Some judges might do this, though they are few and far between.

The more common approach judges take, as articulated in an Arapahoe County divorce case many years ago, is what I call the “garage sale” approach. In that case, the court essentially encouraged the parties to come to an agreement on the marital property on their own, cautioning them that if they did not, the court would certainly equitably divide the property. With that caveat, the court indicated that its method of division would be to order a garage sale, for the parties to put each and every item of household property in the garage and on the driveway, and for all property to be sold, with the proceeds being split equally. Courts just don’t want to be bothered with these issues and, when faced with knowing what a court will likely do, parties realize that figuring out how to divide the tangibles outside of court behooves them. Though dividing up proceeds equally from that garage sale might be fair, the reality is it will cost much more to replaces the items sold.

Knowing how a court might deal with the division of household items, there are ideas and potential solutions your Denver divorce lawyer may propose for dividing those tangibles in a workable manner. In the second part of this post, though I never imagined needing two posts to write on this subject, I will focus on some solutions and strategies for dividing the household item which are more practical that leaving the decision in the courts’ hands.

If you have questions about property division and your unique situation, contact Plog & Stein, P.C. to speak with an attorney today. Our firm serves clients throughout the Denver metro area.