Last Updated On: November 16, 2022

Can a Spouse Throw Out My Belongings During a Divorce?

During a divorce, emotions can become highly charged, and spouses can do all sorts of things to get back at the other or try to intimidate them. One common concern is when one partner has left the marital home, and the other has access to their belongings. What happens if they try to sell, throw away, or hide the personal property of the other?

Spouses still owe each other a fiduciary duty during a divorce. While there are legal ways that they can require that you remove your personal belongings, if your soon-to-be ex-spouse has thrown away your personal property or is threatening to do so, he or she may be held accountable for any property that has been discarded, hidden, or otherwise squandered. Manhattan divorce attorney Juan Luciano discusses Can a Spouse Throw Out My Belongings During a Divorce?

Marital Property Vs. Personal Property

While you are still married, a couple’s property is either marital property or separate property. Marital property is anything acquired during the marriage and personal property is anything you brought into the marriage. In New York, we are an equitable distribution state, and any marital property is subject to equitable distribution laws. Before the divorce becomes final, your home and many of your belongings may be considered marital property and are subject to this equitable property distribution in a divorce matter.

If you or your spouse uses assets from the marital property, particularly in an irresponsible way, running up debt, spending it frivolously, or hiding, selling, or discarding assets, it is called “dissipating” the marital estate. This can have serious consequences for the offending spouse.

Cleaning Out the Home After a Divorce

It can be difficult to declutter your home after a divorce. There can be a lot of things left behind that you share with your ex or things you received from them that can be distracting. Following a divorce, you need to focus on areas that are yours. And this can be hard with many things left behind by your ex-spouse. 

You can throw away any broken or unusable items and you can box anything that you don’t want. Then you can give them to friends or donate them to charities. It will be best to rearrange the rest of your stuff so that you can have a fresh start.

Discuss with your ex-partner how to divide shared household furniture, like the furniture in the living room, kitchen, and master bedrooms. You can let your ex take all the furniture in the living room, while the rest of the bedroom is yours

You can be flexible with your ex if they need time to arrange and collect their belongings. However, you should not let them leave their things with you for a long time. It’s not a good idea to dig through piles of your ex’s possessions every time you go into the garage or spare bedroom. It is difficult for you to progress if someone controls your space in indirect ways. Give your ex a deadline so they can come and collect their possessions.

Legal Remedies

Dissipating marital assets is when one spouse misuses, misspend or otherwise loses marital property. When one spouse has dissipated marital property, the court may order that it be given back during property division.

The courts have many avenues to penalize a spouse for property dissipation, often awarding the non-offending spouse a greater share of what is left of the marital property. In other cases, they can make up for it in a child or spousal support awards. In some cases, the court can invalidate the transfer of property and re-convey it back to the marital estate. Regardless of how it is done, the court doesn’t look kindly on this behavior, and the offending party may find that it has seriously worked against them.

Considering Your Safety

While divorce attorneys often advise against one spouse leaving the marital home before the divorce becomes final, in many cases, it is impossible for a couple to cohabitate safely in the midst of a divorce.

Particularly if the relationship involved domestic abuse, it’s important to discuss this with your attorney before you make any attempts to remove any property from the home, even if you consider it “yours.” While you may have the right to go and remove your personal items, it may not be safe to do so, depending on your situation.

Getting Legal Advice

If you are in the midst of a contentious divorce, it is critical to get the guidance of your New York divorce attorney to understand your rights and the potential consequences of your actions. If you have questions about your property rights in New York or are looking for guidance in a contentious divorce setting, call the law office at Juan Luciano Divorce Lawyer at (212) 537-5859 or contact us through our website for an initial consultation to discuss your needs.


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