Frequently dividing family heirlooms can become a hotly contested issue in a divorce. Specifically jewelry, photographs, antiques or other collectibles are often the focus of separating parties during divorce. To help determine the disposition of those items, it is necessary to know the origins of each item.
The general rule is that anything acquired before marriage is considered to be separate property. On the other hand, subject to some restrictions, anything acquired after marriage is considered to be community property and may be subject to division. Since, in Texas, all property is presumed to be community property, it is important to be able to prove that a particular disputed item was either acquired before marriage, was inherited, or was a gift. In some cases, there may be a dispute over whether the item is separate or community. Even when one party acquires an item from inheritance or prior to marriage, the surrounding circumstances or actions of that party during the marriage could make it subject to division at the time of divorce.
During a divorce, the engagement jewelry is often an item of contention. Typically, an engagement ring is usually considered a gift to the person who accepted the ring and therefore cannot be reclaimed by the gifter. While Texas courts have upheld that an engagement ring is a pre-marriage gift and is not subject to division, there can be an argument made for an exception when the engagement ring was a family heirloom from the gifter’s family.
Another issue that can arise is the misplacement or loss of family heirlooms. To lessen this possibility, the divorcing spouse who decides to vacate the marital residence may either take the heirloom when moving or take photographs of the item’s condition and location in the marital residence for recordation purposes. But having the item or photographs of the item is not proof of value. So, to equalize the division of property, it may be necessary to hire a professional appraiser to assess a value on particular item. Other benefits of having your heirlooms professionally appraised would be for insurance purposes, estate settlement, damage claims, and charitable giving.
If you would like more information about how to protect your family heirlooms or about the general division of assets during a divorce, you can schedule an appointment with Travers & Travers to discuss the specifics in your situation.