Old photographs, family antiques and the autographed basketball. Sentimental value plays our heartstrings, but does it help clients get their special items at divorce? The short answer is generally no. North Carolina’s equitable distribution rules don’t address sentimentality. So what’s a practitioner to do when a client really wants a particular item?
You can start by learning how the client acquired the item. Was it acquired before marriage or inherited? Was it a gift from someone other than the spouse or purchased with separate funds? If the item is separate property, then no matter how much the other spouse wants it, it will belong to the spouse whose separate property it is.
What if the item is marital property? Often, the first approach when a client has a sentimental interest in a marital property item is to simply ask for it. A settlement offer or proposed separation agreement that distributes the item to your client can be a good start. If the parties agree on distribution, the issue is resolved.
Some sentimental items can be duplicated. Family photographs often produce sentimental feelings and are easily copied. Divide the originals equally and provide copies to the party who didn’t receive the originals they wanted.
Sentimental Items
Absent an agreement on division of sentimental items, voluntary mediation is another option before resorting to litigation. If your client wants an item, consider using mediation to trade other marital property for it. But beware: sentimental value can be a double-edged sword. If the other spouse learns through mediation how badly your client wants something, don’t be surprised if that becomes the one thing the other spouse won’t settle without! Emotions can play a big role in equitable distribution cases and spouses often use sentimental items as weapons. Be sure your client isn’t trying to obtain something just to hurt the other spouse.
On the subject of emotion, don’t let a client’s sentimental value cloud the business of determining fair market value. An item may have great sentimental meaning to a client, but little monetary value and you may need to help your client recognize this. Divorce is not the time to let emotions govern important decisions and you should advise your client about the consequences of giving away too much in order to retain too little. Where value is disputed, an appraiser can help determine fair market value with much-needed emotional detachment. Ultimately, some clients need to evaluate whether what they’re fighting for is worth the expert and attorney fees they’re spending to obtain it.
If the parties won’t voluntarily mediate or mediation results in an impasse, the next step is often an equitable distribution lawsuit. Both parties are required to serve affidavits listing their marital and separate property, and they can identify items they want. Courts often require litigants to go through court-mandated mediation or other forms of alternative dispute resolution (ADR) prior to trial and settlement is always possible while litigation is pending. Pre-trial ADR can present additional opportunities to resolve distribution disputes according to what each party wants.
Basis for Distribution
If settlement efforts have failed and the case is headed to trial, it’s time to prepare your client’s testimony. North Carolina law includes a rebuttable presumption that an in-kind distribution of property is equitable. If your client wants an item, prepare the client to testify about why they should receive it. Is the item related to your client’s career or hobby? Was it given to the couple by one spouse’s family? Was it a birthday or retirement gift? If the marital home has sentimental value, consider whether your client can better afford the expense of owning it or is the only spouse with sufficient income to refinance the mortgage. If the asset requires care or maintenance, such as a pet, which spouse provided the care during the marriage and what was the source of funds used to pay for that care? For pets, which spouse has the better housing arrangement or work schedule to care for the pet? Answers to these types of questions won’t guarantee an item’s distribution to your client, but they can give the court a reasonable basis for distributing the item to the party who wants it.
In the end, if your client wants an item badly enough, flexibility is key. Maybe there’s a way to share the item or take turns using it. Consider agreeing to transfer an item to the parties’ children as a possible resolution. If an item means that much, maybe the client would agree to accept a smaller percentage of the marital estate or take on more marital debt in exchange for obtaining the item. Creative attorneys can often find innovative solutions to help clients keep what they just can’t live without. Catherine Pavur
