There’s a hierarchy of issues you deal with in divorce. First: children. Second: the home. Third: debts and assets. Then, way down at the bottom of this list: personal property.
The reason for this is most people take care of personal property when they separate. When your spouse leaves the home, he takes with him most of his stuff. Then, over time, he comes back and gets more of his stuff until everything is more or less divided to satisfaction.
Law vs. Real Life
In a strictly legal sense, each item of personal property should be divided like all other property: equitably. And equitably, for the most part, means equally.
In real life, however, the general rule is that you keep what’s in your possession when you settle your case. If that’s during mediation, then it’s what each of you have at the time of mediation.
There are times when the general rule breaks down. This usually happens when there are very expensive items of personal property — think lots of gold jewelry, or very expensive furniture (especially beds, people fight about beds a lot) — or personal property with extreme sentimental value. Family photo albums are a great example of property with serious sentimental value.
When it comes to expensive personal property, we usually address the issue by estimating the property’s value, and then giving half the value to the person not taking the property.
As an example, if someone had $20,000 of jewelry, he or she would have to give the other person something equaling $10,000. This might be cash (but usually isn’t), or it might be more money from a 401(k) or more money from the sale of the home.
When it comes to personal property with sentimental value, we try to give it to the person who it means more to. That’s easy if what we’re talking about is a painting by someone’s Aunt Sally. Things are much trickier when the item is something like a photo album everyone is equally attached to. In that case, we usually try to duplicate the album (or item) so everyone has an equivalent copy.
What Almost Always Happens
We’ve gone over some exceptions, but 98% of the time, people don’t need to and don’t want to fight about personal property. Instead, they come together and decide who gets what, and that’s the way it should be.