In contested divorce, an ounce of prevention is worth a pound of cure
I recently concluded a long hearing on a claim of contempt of court for violating a divorce order. In the final order, my client lost the marital residence, a house the family had lived in for seven years. But since the children were still in school, the judge ordered that my client would remain in the house until several days after school ended for the summer. Nice, huh? My client got to live in the house for six more months before having to move with the children.
When the spouse moved back into the house, after my client left, there was a claim of serious, costly damage to the property and theft of many items that were supposed to remain on the property. The damage and theft were, of course, blamed on my client.
My client won the contempt hearing, and did NOT have to pay the $45,000 that the spouse claimed was due for the destruction and loss of property. Why? Because the spouse did not have what I call “independently verifiable proof” that my client did anything wrong. There was no independently verifiable evidence to document the contents and condition of the property at the time of the divorce. Nor was there independently verifiable evidence to document the property at the time my client left.
Unfortunately, this was a difficult divorce, and the attorneys were so glad to be done with it, they neglected a few steps that might have saved my client time, worry, and money down the road.
If you and your spouse own a lot of stuff — whether it’s a house and furniture, tool sheds loaded with tools, expensive camping and outdoor living equipment, or anything else — documentation is key. If one party to the divorce will remain in the house for any period of time without the other, and if the house or its contents will be a contested issue, you must document what’s there and what kind of condition it’s in. A house that’s been lived in with kids and pets can look very different from a house whose only residents were both adults.
What is “independently verifiable proof”? It’s the photographs or video recording taken by an independent party. Many people choose to have each spouse’s divorce attorney, or their paralegals, walk through the house together with both spouses. Take pictures or video of every room, every drawer, ever item worth arguing. Will it cost you? Yes, probably. But it’s better to pay extra upfront than to be confronted with a claim for $45,000 a year after you thought your divorce was done!
DO you HAVE to use your attorney? No, you don’t. You can hire an independent group or person. Home owner’s insurance companies sometimes offer such services as part of documentation for home owner’s insurance policies to guard against fire or other natural disasters and thefts. There are independent sources who will also offer such a service, through home security companies, surveillance camera installers, and others. The most important thing is that you use a trusted source, but also one who is truly independent (not your cousin or your spouse’s best friend).
If you and your spouse can cooperate and work together, the two of you can go through your property alone, or with friends or family members, and using a video app or a digital camera, document for yourselves. Make sure each of you have a copy. Of course, if you can cooperate well enough to accomplish this, chances are that you won’t need it…but divorce is tricky business.
Even if you think that documentation of every single box, bin, and drawer is excessive, do not skip a tour of the home. If my client had had the opportunity to walk through the house with the other spouse and their divorce attorneys before the divorce was finalized and again upon moving out of the house permanently, there would have been independently verifiable proof of the condition and contents of the home.
Although documentation beforehand can’t prove WHO caused damage, or WHO took property against the court order, it can help establish that SOMEONE damaged or took SOMETHING. It also reduces the likelihood that a spouse would intentionally commit bad acts — or would wrongfully accuse the other spouse of committing bad acts.
My client was lucky: we had a good judge, the facts and the law were on our side, and the right outcome was reached. But it could have gone much differently. Regardless, extra care early on may have avoided the situation entirely.