There is no simple answer to “Who gets the personal property if I move out?” but some general rules to remember are:
- Just because he bought it, does not mean it is his.
- If he bought something, that does not mean he gets to keep it.
- If you bought something, that does not mean you get to keep it.
- If you are married, you can have your own property, separate from your spouse.2
- And, if you are married your spouse can own his own property, separate from you.
The law about splitting up personal property is different for married and unmarried people. If you want a judge to help you keep some of your personal property or make the person who abused you pay for property you lost, you will have to go to court.
If you are getting a 209A Protective Order, getting divorced, or getting an order for separate support because of abandonment, you will already be in court. The judge can decide about property when you are in court. If you are not going to court for a 209A Protective Order, divorce, or separate support order, and you still need a judge to decide about personal property, you can go to Small Claims court.
If you are married
The court decides about the property of married people in divorce and separate support cases.
When you get a divorce, the judge divides your property.
Getting a divorce can take some time. While the case is going on, the judge can order your spouse to let you use certain personal property and real estate. For example, the judge can let you stay in the house or use the car while the case is going on. If your spouse has abandoned3 you and your children and you cannot pay for the things you need, the judge can order your spouse to let you have certain personal property and real estate4.
When you get a divorce, the judge will divide all of the property that you and your spouse own. The judge divides the property you own together and the property you own separately5. The judge decides what’s fair. The judge will not just look at who bought an item or who actually owns it. Instead, the judge will look at many things. The things the judge looks at are called “factors”. The judge must look at some factors. He or she may look at other factors.
The judge must look at factors for both you and your spouse like:
- how long you have been married,
- how you acted during the marriage,
- your age,
- your health,
- how easy it is for you to get a job,,
- the kind of work you do,
- your job skills,
- your income (how much and where it comes from),
- how much money and property you have,
- your debts,
- your needs,
- your children’s needs, and
- how hard it will be for you to get money, property, and income in the future.
The judge may consider factors for both you and your spouse like:
- how much each of you paid to buy, maintain and increase the value of your property, and
- what each of you did for the family as a “homemaker”. Shopping, cooking, cleaning, and child care can be as important as bringing in money. You have the right to a share of the personal property even if you did not earn the money and did not buy the property.
The division of property when you get divorced is sometimes a division of actual things, usually expensive things, like cars, art work, furniture, and jewelry. For ordinary things, like pots and pans and household tools and appliances, the judge decides how much one spouse has to pay the other.
If your spouse abandoned6 you and your children and you have no way to take care of yourself, you can file a Complaint for Separate Support. If your spouse has abandoned7 you and you do not have enough resources to care of yourself and your children, the judge can order your spouse to let you have some personal property and real estate8.
If I move out, what can I take with me?
If you own it, you can take it.
If you own it together with the abusive person, you can take it, but if you are married you may have to include its value along with other property when the Probate and Family Court judge divides your property. See How can a 209A Protective Order help me with personal property?
If your child is going with you, it is reasonable to take your child’s clothes, furniture, toys, and so forth.
It is important to have good reasons about what you take, like, “I own it,” “I use it,” or “I need it”.
Sometimes you do not have time to get your personal belongings before you leave.
You may be able to get your things back in a court case after you leave. It will probably take some time.
If you get a 209A Protective Order, you can ask for the replacement costs of property lost as the result of abuse when you go to court to get the order9. See How can a 209A Protective Order help me with personal property?
If you are married you can ask for your property back in a divorce or separate support and maintenance case. See If you are married.
If the property is worth $7,000 or less10, you can file a small claims court case. In a small claims case you have to show that the personal property belongs to you. In small claims court, you ask for “money damages.” That means that you ask for an order that the other person pay you what the property is worth. When you ask for money damages , the judge can order the defendant to return your property to you11.
2 General Laws, Chapter 209, section 1.
3 “Abandon” means that your spouse has left you and does not plan to return.
4 General Laws, Chapter 209, section 30.
5 General Laws, Chapter 208, section 34.
6 “Abandon” means that your spouse has left you and does not plan to return.
7 “Abandon” means that your spouse has left you and does not plan to return.
8General Laws, Chapter 209, section 30.
9 General Laws, Chapter 209A, section 3.
10 General Laws, Chapter 218, section 21.
11 General Laws, Chapter 218, section 21; Chapter 214, section 3.
Produced by an AmeriCorps Project of Western Massachusetts Legal Services updated and revised Massachusetts Law Reform Institute Last updated November 2010