This is a common and important question that arises in a divorce. If you are out of the marital home—whether by court order (such as a protective order) or voluntarily—and left behind personal belongings, you may be wondering whether your spouse is free to keep or dispose of those items.
If There Is No Dispute
If your spouse does not contest your claim to certain property being your premarital or other form of separate property and is willing to cooperate with your efforts to retrieve the items from the home, the simplest solution is to schedule a time—preferably with written documentation either between you and your spouse or between the attorney(s)—to collect your belongings. In such cases, no court intervention is necessary.
If There Is a Dispute Over Ownership
However, if your spouse refuses to hand over your property and disputes your claim to it, the matter becomes more complex. Ownership of property—especially personal items—can easily become a contested issue in divorce proceedings because it’s often difficult to prove ownership.
Proving Ownership
To strengthen your claim, gather any available evidence that objectively proves or at least strongly supports your claim that the property is yours. Useful forms of evidence/proof include:
- receipts or proof of purchase;
- photographs of the item in your possession at a time before you married;
- documentation showing the item was a gift to you to either pre-marriage or from someone other than your spouse (a third party) during the marriage;
- written or audio-recorded communications (texts, e-mails, back of a cocktail napkin, etc.) in which your spouse acknowledges the item belongs to you.
If you lack proof, circumstantial evidence may help. For example, if the item is clearly something your spouse would not use or own, that may support your claim. Examples include, by way of just a few examples:
- clothing or gear or other items that do not fit your spouse or that are clearly not intended for use by the opposite sex,
- specialized tools for a trade in which your spouse does not engage (e.g., welding equipment) that were clearly not purchased during the marriage (if they were, then they would be marital property),
While these arguments are not as strong as objective evidence, they may still carry weight in court.
Seeking Relief Through the Court
If your spouse refuses to return your property and no agreement can be reached, self-help retrieval is not worth the risk or the hassle. Do not attempt to retrieve the property without permission or without a court order. Doing so could negatively affect your case. Even if the property is rightfully yours, retrieving it without legal authorization can escalate conflict. Attempting to retrieve property without consent or a court order can lead to allegations (whether true or false) of trespassing, harassment, or domestic violence. That can trigger protective/restraining orders, sanctions, and damage your credibility in court. Judges in divorce or custody proceedings may view self-help as impulsive or hostile, which could negatively influence rulings on custody, property division, or other contested issues. Legal remedies exist to recover property safely—use them instead of risking your case and reputation through unauthorized action.
The court may issue temporary orders regarding property or include the disputed items in its final division of assets. If your spouse has already disposed of or damaged your property without consent, you may be entitled to compensation for the lost/missing or damaged items.
Conclusion
Leaving or being removed from the marital home does not mean you forfeit your rights to personal or marital property left behind in the home. It is important, however, to weigh the value—monetary and emotional—of retrieving an item against the legal costs and effort required to recover it.
Utah Family Law, LC | divorceutah.com | 801-466-9277
