The immortal George Carlin once said, “That’s the whole meaning of life, trying to find a place for your stuff. That’s all your house is, just a place for your stuff while you go out and get more stuff.”
In the context of Family Law, the topic of personal property is rarely discussed and consistently dismissed by the court and counsel. It is clear that both view personal property as being simply stuff. In fact, it has been assigned multiple euphemisms to it in order to deflate its relative importance. We have all heard the dismissive terms: chachka; accoutrement; trinket; fixture; knick knack; and of course, whatnot- a word specifically designed to describe all the things the item is actually not. In addition, there is often such contempt for personal property that we have created an amalgamation, personalty, simply in hopes of accelerating the process of distributing it by reducing the length of the term, itself.
However, it is the area that often elicits the strongest amount of vitriol amongst our clients because it is the property that they maintain the strongest emotional connection to, and it is most immediate in their consciousness. No one dreams about their pension, but everyone has a level of intimacy with their bedroom set. The issue of personal property arises initially in most cases when one party vacates the former marital residence, whether it be voluntarily after custody has been resolved or involuntarily as a result of a domestic violence situation.
Either way, the vacating party subsequently and often desperately wants to return to the residence to retrieve their personal property. However, courts are rarely inclined to get involved in the piecemeal distribution of these items until the entirety of the case has been resolved given the volume of substantive issues already on the docket. This leaves the vacating party, often times with minimal notice, without the comforts of home for the first time in years.
To combat this inequality and to ease their transition, we as attorneys become engaged in the negotiation of the retrieval of a limited number of items on a pendente lite basis. This retrieval can take the form of a walk through, which inexorably leads to the police being called as the parties can not agree on who gets the mortar and who gets the pestle. In the alternative, the party with exclusive use of the residence often becomes spiteful and gleefully leaves the agreed upon items in disarray in the street, so their spouse has to suffer the indignity of retrieving their stuff in full view of the neighborhood.
As we fast forward to the conclusion of the matter, we have all witnessed the lassitude and scowl on our adversary’s face as we approach them with a hand-written proposal about personal property. Attorneys regularly leave the issue for last in hopes that it will resolve itself or simply be forgotten, just like working abs at the gym. In fact, I have encountered many adversaries that refuse to even participate in the distribution of personal property as they believe the topic is beneath them. In turn, I have been forced to allay the visceral reaction of my client upon learning that their material possessions are immaterial to the court. This clear disconnect forced me to re-examine this issue.
As family law attorneys, we relish the ability to inform our colleagues that our current case involves erudite issues like utilizing coverture fractions, distributing preretirement survivor annuities and valuing goodwill through capitalization. However, we will avoid at all costs telling our spouses that we put our law degrees to good use by spending our day personally distributing someone else’s spice rack.
In some ways, the request is unduly burdensome for attorneys as we retain appraisers to value the personal property that has maintained substantial value. The remainder of the items are often worth less than the cost of the actual appraisal itself. In those instances, which occurs more often than not, we are left to our own devices to assign them value. However, much to our client’s chagrin, we can not retrieve the balloon that slipped out of their hands during their first date with their current spouse. There is no Kelly Blue Book for their soul, and there is no accounting for the sentimentality and nostalgia that has selectively transformed picayune into precious.
To that end, we have never been in our client’s home and therefore have no way of knowing the current and substantially depreciated values of its contents. Who knows how much the Biedermeier girandole, Thom Browne collar stay or the Givenchy ascot is actually worth. Implicit in that evaluation, is the realization that it is impossible to fairly value the dust that has been unsettled by having to separate comfort from convenience.
In other ways, attorneys do not grasp the relative importance of these items to their clients. Often litigants are forced to pick their favorite piece of personal property in order to facilitate the process of distribution. This is akin to asking Don DeLillo to pick his favorite sentence, or asking someone to pick their favorite breath of air. Inevitably, it will be their next one.
The items themselves may be objectively worthless but they are subjectively priceless to our clients. We must appreciate that nearly all clients want the time back they lost on their marriage and these items tangibly embody that void. These items serve as placeholders of better times, and are the penumbras of what could have been. I have learned that while the items are purely decorative, they have often insulated our clients from dealing with the reality that their relationship was irretrievably broken years before a complaint was actually filed. Notwithstanding, that wound is still raw and their material hemostasis only delayed the inevitable.
When the parties are unable to reach an agreement about personal property, the court reluctantly gets involved. To resolve this issue, I have seen Judges pick randomly out of hat from a list of all the parties’ stuff, flippantly divide homes by assigning the contents of different rooms to each party, or simply let the parties alternate picking items from a global list like they are back in gym class. However in this unique instance, the last pick seems to have as much importance as the first.
However the items are ultimately distributed, we certainly owe it to our clients to treat the distribution of their personal property with the same dignity and empathy as we do the distribution of their real property. Both are far more than just stuff. Perhaps, we now know why guys like you and me know what a duvet is.
Seth Parker is an associate in Fox Rothschild LLP’s Family Law Practice Group. Seth practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7538, or firstname.lastname@example.org.