Nasty Breakup: How Do I Get My Stuff Back?

Are you going through a nasty break up and your ex is refusing to give you your stuff back? This happens more often than you think. I get a lot of calls from people who are trying to get their property back from an ex that is trying to keep all their stuff. Even if you were not married, there are ways of getting your property back and taking your ex to Court.

Make A List

The first thing you need to do is to make a list of all the property that is being kept. You will eventually need that list to prove to the court what property is being unlawfully withheld. Your list needs to be very detailed and needs to outline things like makes and models of the property that they are keeping. For example, if your ex is refusing to return your lawn mower you need to list out what kind of lawn mower it is.

Get Your Receipts

If your ex ultimately refuses to return the property, you will need to prove the “provenance” of the property. The provenance is the proof of ownership and where the property came from. Before the Court can return the property, you will have to prove that you are entitled to its return. You do not want to be in a situation where your ex claims it was their property and you have no proof.

If you purchased the property by credit card, get your credit card statements. If you paid cash, try to find your receipts. If you paid with a check, go to your bank and get the canceled checks. Either way, you are going to need proof of ownership before the Court can return anything.

Talk It Out

Before going to Court, the Judge is going to want to see that you tried to get your stuff back the easy way. You want to start by sending a certified letter to your ex explaining what property they are refusing to give back. Attach the list and the receipts to the letter and make sure you make that letter certified to prove they received it.

Go To Court

If all else fails, you will need to take this to Court. The proper way of taking this issue to Court is by filing a “Warrant in Detinue.” This is a type of lawsuit that tells the Court what property is being withheld and what the value of the property is. That is why the lists and the receipts mentioned above are very important. You need to get those items together before you file.

Once you go to Court, the Court will review your proof of ownership. If you have enough proof, the Court will either order the items to be returned or order your ex to pay you for the fair market value. You may even be entitled to legal fees depending on how things play out.

Virginia Divorce Law: What is Separate Property

A lot of people contact me asking questions about whether or not certain types of property will be divided during a divorce. The most common examples may include inheritance, businesses and real estate. Some people come into a marriage with a lot of property while others do not have a lot of assets when they get married.

Regardless, when two people get a divorce property will get divided into three separate types of property: Marital, Separate and Hybrid. So what is separate property, and what are some common examples?

What is Separate Property in a Divorce?

Virginia law actually has a legal definition of separate property. Virginia law defines separate property as:

1. All property, real and personal, acquired by either party before the marriage;

2. All property acquired during the marriage by bequest, devise, descent, survivorship, or gift from a source other than the other party;

3. All property acquired during the marriage in exchange for or from the procees of sale of separate property so long as that property was maintained as separate.

4. Income derived from separate property so long as not attributable to labor from during the marriage;

5. Increase in value of separate property unless contributed to during the marriage

These are the five most common types of separate property. This is a lot of legal jargon to say that separate property is essentially those items you bring into a marriage that you keep separate and do not comingle or contribute marital funds or labor to.

What Are Examples of Separate Property?

A good example of separate property is a business that you start prior to marriage. That business starts out as separate property, and would normally not be divided during the marriage. The income from that business would also not be divided, nor would increase in value, unless you make substantial marital contributions to that business.

For example, if your spouse invests in your business after you are married, you add your spouse to the business as a joint owner, or you take out additional financing during the marriage then that may turn the business into joint property that has to be divided.

Another example of separate property is a house that you owned prior to marriage. So long as you do not add your spouse to the house and it is owned outright, you normally would not have to reimburse your spouse anything during the divorce unless there were major renovations or marital investments in the property. If the house is mortgaged and you pay it down during the marriage, then substantial portions of those mortgage payments would get divided since you are investing marital funds into the property.

Why You Need a Divorce Lawyer.

If you are going through a divorce and have substantial assets, then it is important to have a divorce lawyer to help you catalog all of your property and figure out how much of it will be divided and how much the other spouse is entitled to. The divorce lawyer can also make sure you do not waive any interest you may have in the other spouse’s assets as a result of marital contributions to the property. Make sure to hire a lawyer if you are considering a divorce.

Virginia Divorce Law: What is Marital Property

There are three types of property that have to be addressed in a Virginia divorce case: separate property, marital property, and hybrid property. This blog post is dedicated to the second type of property, marital property.

Marital property, generally, is property acquired during the marriage and the entire value gets divided in some form or fashion.

However, many people I talk to don’t understand how broad this category of property is. So what is marital property, and what gets divided in a divorce case?

What is Marital Property in Virginia?

Virginia law has a legal definition for marital property. The legal definition of marital property is:

(i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise,

(ii) that part of any property classified as marital pursuant to subdivision 3, or

(iii) all other property acquired by each party during the marriage which is not separate property as defined above.

In basic terms, most property acquired during the marriage, regardless of whose name it is in, is considered to be “marital property.”

Some common examples of marital property that often surprise people include:

1. If your spouse has a Kohl’s credit card you were entirely unaware of, then you could be responsible for portions of this as “marital debt” even if your name is not on the card.

2. If you purchase a vehicle during the marriage but your spouse’s name is not on the vehicle, then your spouse could be entitled to money if you decide to keep it.

3. If you purchase a house during the marriage but do not add your spouse’s name, then your spouse could still be entitled to reimbursement.

4. If you have a separate bank account without your spouse as a joint account holder, then the money in that account added during the marriage could be divided.

5. If you are self-employed and started a business during the marriage, then your spouse may be entitled to compensation.

There are a lot of exceptions to these categories, which is one of the major reasons to talk to a lawyer.

Why It Matters Whether Property is Marital

Virginia divorce judges have to divide property that is considered marital in some form or fashion. If property is considered marital, then you have to start financial planning to determine what your ideal outcome in a divorce case will be. You may decide that selling marital property as part of the divorce proceedings makes more financial sense than offering your spouse a buy out to keep the property.

All of the marital property combined is what we call the “marital estate,” and understanding the size and make up of the marital estate is important to having a game plan for divorce proceedings.

Why You Need a Divorce Lawyer.

A good divorce lawyer is able to help you look at all the property you have and determine which items are marital property and which are not. They can also help you create a financial game plan for what happens during and after the divorce and to prioritize those property items that matter most to you. Also, a divorce lawyer can connect you with financial planners if you need additional assistance planning for life after divorce.

Make sure you call a divorce lawyer if you are looking at a divorce.

Virginia Real Estate: Types of Professionals

Are you thinking of buying or selling real estate? If so, you have several options for accomplishing this goal. Property can either be sold by owner or may involve a brokerage firm. Either way, you need to be familiar with the various types of professionals that are involved in a real estate transaction, what their role is, and how best to interact with those professionals. Understanding the role of each professional will speed up the process and help you buy the right property or sell your property for the right amount.

So who are these professionals, and what are their jobs? The professionals listed below may not be a complete list of who is involved in your particular property.

Real Estate Agents

The first major group of professionals involved in the sale or purchase of a property is real estate agents. Real estate agents are licensed professionals that have access to special databases that provide significant amounts of detail for properties in your local area. Real estate agents use these databases to find homes for sale or to find comparable homes to determine how much your property should be sold for.

Real estate agents, however, are not lawyers. They cannot provide you with legal advice or tell you what type of deed you need. A real estate agent is also restricted from helping you settle certain types of disputes. The primary role of a real estate agent is to give you experienced pricing and location services.

Real Estate Inspectors

The second major group of professionals is home inspectors. Home inspectors are professionals that are hired to make sure that the property is safe, bug free, and structurally sound. Home inspectors can come in many different types. Some home inspectors are not able to provide engineering advice, and cannot tell if you have structural issues.

The most common type of home inspector will simply perform a cursory investigation, and will not attempt to uncover any hidden defects in the property. If you have substantial concerns about the safety of the property, you need to invest in a more thorough evaluation of the property by an engineer or other type of inspector.

Real Estate Financing

The third major group of professionals is the mortgage company or banking industry professionals. These individuals are there to provide financing or evaluations on the value of a property. A mortgage company may be essential if the property needs repairs prior to sale, or if a couple needs additional help to purchase a home. Mortgages can come in all shapes and types. These types of mortgages will be discussed in greater detail in a different post.

Lawyers

The final major group of professionals is lawyers. Lawyers play a huge role in the purchase or sale of property. A lawyer can provide legal advice in the event that there is a dispute between you and any of these other groups of professionals. A lawyer can also review deeds and provide guidance on how best to proceed on the sale or purchase of a property. Finally, a lawyer’s services can be used to make sure the sale of the home is properly recorded.

Virginia Probate: How Lawyers Avoid Probate

Probate is generally the process by which a deceased individual’s assets are transferred to their heirs. The vast majority of property that an individual owns will pass through probate unless it is a small estate. Property that passes through probate may be sold to satisfy creditors or to pay for administrative fees. This means that some of an individual’s property, even if it is intended for a specific heir, may not make it to that heir depending on how much debt that person has.

However, Virginia law allows you to avoid probate for certain types of property. How is this done, and how can a lawyer help you avoid the costs of probate?

Payable On Death Accounts

One common example of an estate planning method used by lawyers is known as a payable on death account. These types of accounts typically hold a specific amount of assets which are held for a specific beneficiary. These assets are immediately transferred upon death to that beneficiary. This means that the beneficiary will be considered to own that property without having to go through probate.

Some common examples of payable on death accounts include a bank account with cash, a safe deposit box, or event real estate.

Life Insurance

Another common method of estate planning available to lawyers is to set up life insurance accounts with specific beneficiaries. This allows an individual to invest their savings into a life insurance plan that will transfer money immediately upon their death to a designated beneficiary. There are several restrictions on how much can be placed in such accounts and what financial institutions qualify to offer these services.

Sharing Real Estate

Finally, another option used by lawyers is to have individuals hold property in a “joint tenancy” arrangement. A common example of this method is to transfer a portion of ownership in a house to a beneficiary with a “right of survivorship,” which means that upon death that beneficiary will own the entire house without having to go through the process of probate.

Why You Need a Probate Lawyer

Each of these options carry with them unique tax and medical planning issues that need to thoroughly be addressed. Every person’s case is unique, and a combination of these plans may be needed to minimize the amount of taxes that are paid and to preserve the property. It is also important to hire a lawyer to understand when not to use these estate planning tools, as creditors may attack your transfers as an attempt to avoid their claims. Hire a lawyer to help you prepare your estate and to protect your heirs.