Chapter 11. Personal Property

1. What about all the things my abusive partner and I own together? We have been living together for three years and we share furniture, dishes, and a car. What happens to all our belongings?

This chapter tries to help answer the question of who is entitled to possession of your shared "personal property," that is, any property you own which is not real estate. The chapter is written for women who do not have a lot of money. If you and your partner own businesses, stocks and shares, or if you are landlords and own real estate, your questions about shared property are beyond the scope of this manual. However, we will try to provide some basic information about property like cars, clothes, furniture, and bank accounts.

There are some basic concepts about personal property that you should keep in mind while you read.

• Just because he bought it, doesn't mean it's his. The personal property isn't necessarily his (or yours), even if he (or you) purchased it. For married people, Massachusetts is not a community property state, but the property of each spouse is subject to fair or “equitable” division by the court. The primary factor the court considers is contribution. Whether you are married or not, the issue of who is entitled to what is complicated. The law is a lot clearer about the process of dividing the property of people who are married. When a judge divides marital property, she looks at how each of you contributed to the household. Contributions to the household are not just financial. What did you bring? What did you buy? If he bought everything, how did you contribute to his earning power? How did you contribute to supporting the household? Did you stay at home and look after the kids, or clean and cook for him?
• "Status quo" or "What's done is done." If you peacefully take what you believe is your share of the personal property and your abuser wants it back, he has to take you to court to get it. If your abuser does take you to court claiming some or all of the personal property, you have a good chance of keeping what is in your possession if you have acted reasonably and fairly. In general, judges prefer not to order changes in the "status quo," (the way things are) unless they must act in order to insure basic fairness. It is very time-consuming for judges to hear the history of every single thing you own so they can divide up the pots and pans and bed linen.
• A gift is a gift. If your abuser gave something to you or the children, it's yours or theirs. He can't take it back. If you gave your abuser presents, they belong to him.

2. Right now, I just want to get me and the children away from my abuser. Should I even worry about our belongings?

Of course, your first priority is always your safety and the safety of your children. If you don't have the luxury of planning, then you may not have time to consider property. But remember that if you and your children are on your own, you are going to need furniture, beds, clothes, a car, and money. One of the reasons women find it hard to leave is because the thought of moving with their children into an empty apartment with no household belongings is distressing. This is especially true if any money a woman has saved or borrowed has just gone to pay first and last month's rent. Having your ordinary household things may help keep you safe and independent. For low and middle income people, household furniture and cars are often all they have. These are important and necessary belongings, not easily replaced. Take what you think is yours and the children’s. If he disagrees with what you have done, he can take you to court and explain to the judge why it is unreasonable or unfair for you to have taken what you took.

Property can be divided up in a divorce case or a separate support case, or a small claims case. (See Chapter 8.) However, divorces and separate support cases take a long time to resolve, and small claims court is often a dead end. You may be waiting for a long time for the Probate and Family Court to order that you get the children's bedroom furniture under the divorce. You may never collect a small claims judgment. That is why planning what to do with your personal belongings before you leave is important as long as you can do it safely.

3. My abuser has just beaten me for the last time. I'm getting a 209A protective order. Should I get an order that my abuser vacate our apartment? There are so many bad memories for me and the kids in the apartment that I'd rather just leave it and make a fresh start.

There are many things to consider here. Whether or not you are safe in the apartment is always of the greatest importance. But consider this, too: he or she who has possession of the apartment has possession of the personal property in it. That's the way it works with 209A protective orders. Do you and your children need cooking pots, familiar surroundings, favorite toys, knives and forks, beds, a kitchen table, etc.? Even if you are planning on moving eventually, you may want to stay in the apartment long enough to find a better situation with your household furniture, not without it.

4. I have to leave our apartment. I can't stay there any longer. It won't be safe for me to stay, and I won't be safe if he has my address. I am going to leave and then get a 209A protective order. What can I take with me out of the common household items and furniture?

This is a difficult question to answer, because every case is different. There are many factors to consider in deciding what to take with you. You may have to make some practical decisions. Do you have somewhere to store furniture? Do you have a way of moving it? Are you taking the children with you, and if so, what do they need? When thinking about what you need, be reasonable. It is also important to consider what a court would think if the division of your personal property becomes an issue in a court case later on.

In general, if a court addresses division of property, a judge will divide the property based on what he or she sees as fair and reasonable. The court will probably take into account which of the household furniture and personal possessions each of you brought to the relationship. It is generally fair to keep what you brought. It is also generally fair to keep about half of what you bought together. The children's belongings and furniture usually move with them, and shared belongings, like living room furniture and kitchen tables may be more necessary for the person who has custody of the children. If your hobby is sewing, it is probably fair to take the sewing machine. If his hobby is fishing, you should leave him the fishing equipment. You should know that if you are married, there is a specific section of the divorce law which lists factors for the court to consider when it divides marital property (Massachusetts General Laws, ch. 208 s. 34).

Even so, keep in mind that what you first take with you, you are likely to be able to keep in the long run. (See Question 14.) Generally, court processes are not suitable for dividing small and numerous items of personal property such as pots and pans and bed linens. The Probate and Family Court will try to be sure the children have their belongings and furniture.

You can take everything with you that you believe you own so long as you do not breach the peace in doing so. You can pull up with a moving truck while your abuser is not home. But it is important to remember that you might very well end up arguing about the personal property in front of a judge in court later. If you have cleared out the apartment completely, the judge might find that you acted unreasonably and order you to return some or all of the property to your abuser.

5. If I get a 209A protective order against my abuser and he has to leave our house, what can he take with him?

If the 209A protective order says so, your abuser can come with a police escort and take his personal belongings. Personal belongings are items such as clothes and identification. He is not allowed to pull up with a truck and empty the apartment. It is unlikely the police would let him even try to do this. However, if your abuser starts trying to pack pieces of furniture into his car, then take out the 209A protective order and show it to the police officer. Explain that the order says the abuser can take his personal belongings only and that doesn't mean the VCR, the stereo, and the kids' videos. It means clothes, identification, and similar shared items personal to him.

If you want your abuser to have the living room furniture and his tool set, or if you want him to take his CD player and bureau, pack it all up later and let a mutual friend or relative know when they can pick it up for him. The abuser can have anything you are willing to give him. Where there is a 209A protective order, he does not have the right to take furniture or other personal property against your will or without your permission. In order to get personal property, he would have to go to Probate and Family Court and file a divorce or a separate support case, or he would have to file a case in District Court, such as a small claims case, and get a court order or judgment.

6. The 209A protective order has been granted and, for now, I have the furniture and the kids' things. But my abuser threatened to go to court and take everything away from us. He says he paid for everything and it is all his. Can he do that?

First of all, go back to the basic concepts in Question 1. Your shared household possessions do not belong to your abuser. He can try going to court to get them back -- everyone has a right to ask, after all -- but he won't necessarily win his case.

7. Which court will he go to?

The answer changes depending on whether you and your abuser are married and have children. If you are married, the abuser can go to Probate and Family Court or Small Claims Court (if the value of the property is $2,000 or less) or District Court (property valued at $2,001-$24,999). If you are not married, and it is property which has to do with the kids (e.g., their beds), your abuser might try to get a Probate Court judge to address the issue; if not, his only option is Small Claims Court, which is at the local District Court. If you were not married and do not have children, his only option is Small Claims Court or District Court.

8. What happens at Probate and Family Court and how do I respond?

If you are married to your abuser and he has filed a Complaint for Divorce, Complaint for Separate Support, or Complaint for Custody in the Probate and Family Court he can file a "motion" to try to get household items back from you. (A motion is a request to the court to make a temporary order quickly, before the whole case --- the divorce, separate support or custody--- is resolved permanently at a trial.) At the motion hearing, you will get a chance to explain to the judge why you think your abuser should not get the household items back.

If you are not married to the abuser, but you have children together, he can file a Complaint for Paternity or a Complaint for Support - Custody - Visitation in the Probate and Family Court, and file a motion asking for temporary custody of the children. Again, you will get a chance at the motion hearing to explain to the judge why he should not have custody. If he gets custody of the children, he can ask the court to order that you turn over the children's toys, clothing, and furniture. However, in these types of cases, the judge is not likely to order any transfer of property that does not belong to the children.

9. Can the abuser get an order regarding household property from Probate and Family Court right away?

If the abuser files a Probate and Family Court case with a motion to transfer the property back to him and serves it on you properly, you could be in court about the property in a week to ten days after the abuser files and serves the case and the motion.

On the day the motion is heard, you get a chance to explain to the judge why you think he should not get back the household items.

10. How do children fit into this picture?

Whether you are married to the abuser or not, if you have custody of the children in a case involving domestic violence, the judge is probably going to be sympathetic to you on the issue of keeping household furniture. Nobody, including the judge, likes the thought of children not having a sofa to sit on, beds to sleep on, or a kitchen table to eat at.

Children's belongings should go with the children. If you have custody of the children, you are likely to get their furniture, toys, and clothes, too.

11. Is there anything which might stop the abuser from going into Probate and Family Court?

Anyone has the right to go to court and file cases and motions. There are many things an abuser might think about before going to court. For example, he will have to file a proper underlying case and he may need to get a lawyer. He may have to pay a deputy sheriff to serve the complaint on you. He will probably have to pay a filing fee, unless his income is very low. He may remember that there is an outstanding warrant for his arrest and not want to go near a courthouse. All of these things may discourage him. He may decide it is not worth his while to spend time and money getting back the household furniture; it might cost more than it is worth in time and money.

12. What happens at Small Claims Court?

The abuser has to go to the District Court and file a Small Claims Court case (See Appendix A at the end of this Chapter). The filing fee is low, currently $14.00 to $19.00. You will get notice of the date you should go to court and respond to his claim.

13. What do I do when I go to Small Claims Court for the hearing?

Small claims are usually heard by a "clerk-magistrate," not a judge. The process is not very formal. "The People’s Court" on television is a small claims court and real small claims court is actually usually much less formal than "The People's Court."

First you go into the courtroom, and a clerk calls out the names of all the cases. You say if you are present. If the plaintiff (in this case the abuser who filed the claim) does not show up, his case is dismissed. Some of the people who have filed small claims cases on any given day do not show up to pursue them.

If the abuser does show up, you may be asked to "mediate" the case. When you "mediate" the case, one of the court personnel tries to persuade you and the abuser to come to an agreement without arguing before the magistrate. If you are afraid of your abuser and have a 209A protective order against him, you do not have to mediate. Explain the situation to the court personnel.

If you and your abuser cannot come to an agreement in mediation, or if you are afraid to mediate, you will go before the clerk-magistrate without an agreement. Explain about the 209A protective order to the clerk-magistrate. If the two of you are still married, tell the clerk-magistrate that you are married and tell him if there is a divorce or other case pending at Probate and Family Court. The magistrate may then tell you both that any questions about "marital property" belong in the Probate and Family Court. Bring your 209A protective order and show it to the clerk-magistrate. Tell the clerk-magistrate that this is just your abuser's way of getting back at you now that he can't abuse you physically anymore. If you have children who are using the things your abuser is trying to get back, explain that, too. Don't be afraid to explain why it is fair that you keep these things, and why you need them.

14. Does all of this mean I can keep all the joint property I want as long as I get a 209A protective order and a vacate order?

No. To evaluate your case, look at the facts in your situation. For example, suppose you met your wealthy abuser a month ago, then moved in with him a week later, bringing nothing with you. Yesterday he beat you up and you got a 209A protective order against him. If you let him pick up his clothes and identification, but would not let him take his expensive possessions away through a third party, there would certainly be problems for you later on.

If it looks to a judge as though you acted in bad faith, or got an order just to get your abuser's possessions, a judge would probably order you to give everything back or pay the abuser for the belongings.

However, suppose you have been living with your abuser for five years, but are not married and have no children. You took care of the house and worked on and off. In the five years you were together you both furnished the apartment, partially with his pay and your pay, and partially with gifts. After getting the 209A protective order, you give him what you think is fair, but he says he wants all the furniture. He says that if you aren't going to come back to him, you aren't going to get anything. He takes you to Small Claims Court. The question of who owns the household furniture here is more complicated because you probably both own it. Under these circumstances, the judge is less likely to think you are acting in bad faith and she may be sympathetic toward you because of the abuse.

15. What about bank accounts?

The most common types of bank accounts couples have are joint savings accounts, joint checking accounts, and individual checking accounts and individual savings accounts. All the money in joint accounts belongs to both of you. On a joint bank account, either party can go into the bank and withdraw all of the money in that account, whether the people are married to each other or not. On an individual account, only the person whose name is on the account has "everyday access" to it, whether that person is married or not.

If your abuser is not bringing home a pay check, and you need to pay first and last month's rent on an apartment, or pay the mortgage, you and your children will likely need that money to survive. If you do not protect that money, your abuser might empty the account. Sometimes, the first place a batterer goes after being served with a 209A protective order is the bank.

16. What about individual bank accounts if my abuser and I are married?

If you and your abuser are married, all the property - bank accounts, cars, houses - belongs to the two of you together, no matter whose name it is in. It is all "marital property," and can be divided up by the Probate and Family Court.

Once you file a Complaint for Divorce or a Complaint for Separate Support, the Probate and Family Court issues an automatic restraining order. The order states that neither party may spend money (except as required for reasonable expenses of living) in her/his bank accounts or in joint accounts until it is divided up fairly. This special order is also called a "temporary restraining order" because it temporarily restrains both of you from spending the money; this is not the same as a "209A protective order." (See Question 2 in Chapter 5.)

You can also ask the judge when you get your 209A protective order to write into the order that your abuser cannot spend the money in his individual accounts for a period long enough to give you time to find a lawyer and file a divorce or separate support case in the Probate & Family Court. Explain to the judge that you need the time to find a lawyer and get to Probate and Family Court and she might be more willing to order the abuser not to spend money in bank accounts through a 209A protective order.

It is important to keep as many financial records as possible in case your abuser ignores the order and spends the money. You will need to prove that the money was in the account at the time the order was issued and that you were not the one who spent it.

17. What about tax return checks?

Tax return checks are marital property, just like individual bank accounts. You can ask the judge who issues you a 209A protective order to order your abuser not to spend the money for a month, or hand it over to a third party, until you can find a lawyer and get to Probate and Family Court.

18. I don't like all this focus on money. I just want to get away. I don't want to look like a bad person. Does it make me look bad if I try to get some financial support?

No, it doesn't make you look bad. If the children are with you, the court will expect you to look out for their interests. A careful mother and a sensible person would try to get financial support for herself and her children. Has your abuser used money to control you? Have you stayed with him because you were afraid you couldn't make it on your own, and afraid that your children would suffer financially if you left? Battered women often feel that they have to take care of their abusers or that they have no right to anything. But you didn't create the abusive situation. You wouldn't have to leave if he had not abused you. You and your kids deserve a chance to make it on your own and that means having some financial support.

All that having been said, you should make your own decision about what to do about money and property. Of course your safety and the safety of your children are the most important things.

19. The car is in my husband's name and he pays the insurance bills. What am I going to do for transportation?

As always, your safety and the safety of your children are the most important considerations. If trying to get the car is going to put you at risk, you might not want to do it. Also, if you have a child support order and taking the car will mean your abuser cannot commute to work, you may want to leave it with him.

If you are married to your abuser, the car is marital property, no matter whose name it is in. It belongs to both of you.

If you are getting a 209A protective order, you can ask the judge to order your husband to turn over the car and the keys to you. You are more likely to get an order for the car if you have to drive the children to school, day care, or to take them with you for activities connected with obtaining basic necessities, such as food shopping, or if there is some other good reason you need the car. In a 209A case, the judge is more likely to order that you have exclusive use of the car than that you own the car. The question of who keeps the car permanently may be more properly resolved in a divorce division of property.

If you forget to ask the judge for the car under the 209A protective order, it is probably best that you file a motion to amend the order. Technically, you could take the car. Even if the title is in your husband's name, the car belongs to both of you, legally, because it is marital property. However, your husband could call the police stating that you stole his car. While the police should tell him that it isn't his car, that it is marital property and belongs to both of you, this may not happen. You might be risking a ticket or court or you might even be risking arrest; if so you will have a chance to explain to the judge why you took the car. However, the officer may just tell your husband that it is marital property and he needs to go to Probate and Family Court to resolve the issue. Your husband would do this in the same way he would seek an order for other property, as described in Questions 7 through 14, above, and would face the same obstacles.

If your abuser cancels the insurance, or stops paying the car loan, you will have to cover them yourself unless you can get a judge to order that he continue paying. You could try to get the judge in the 209A protective order hearing to make such an order, or, if you have an underlying case in Probate and Family Court, you could file a motion there. If you do not have a 209A protective order, and you are not ready to file anything in Probate and Family Court, you might wish to look into Alternative Dispute Resolution (ADR) services.

20. My husband has spare keys. If I take the car, he will just take it back! What can I do?

You can get the locks changed, get a club on the steering wheel, or get a crook lock. However, if you think he is going to take the car back, rather than play tug of war with the car, it might be better at this point to think about going to court and resolving the car matter once and for all.

21. My husband took the car. Can he keep it? Do I have to go to court to get it back?

Going to Probate and Family Court is probably the safest option. But, as discussed, in Questions 19 and 20, legally you could probably take the car back, if you have spare keys. You would probably want to install a club or a crook lock to protect the car, once you get it back. As discussed in Question 20, it might be better at this point to think about going to court and resolving the car matter once and for all.

22. I am not married to my abuser and the car is in his name. Can I take it?

You would probably be risking arrest if you took it without a court order. To convince a judge in these circumstances, in a 209A case, that you should keep the car, you should be prepared to show the judge that your having the car is essential to the safety of you and your child and to protecting you from further abuse. However, if the judge who issued the 209A protective order put on the order that you get the car, then you are probably safe taking it. If the police come to ask you about the car, you can show them the 209A protective order.

23. I am not married to my abuser, and the car is in both our names. Can I take it?

The car is joint property. If your name is on the title, the police are not likely to get involved if you take the car. However, see the answers to Questions 19 and 20.

24. My abuser gave me a camera and a stereo for my birthday. Now he says they are his and wants to take them back. Do I have to give them back?

Gifts are permanent. The law says he cannot take them back. If you are married, your abuser can file an underlying case in Probate and Family Court, file a motion for the return of the camera and the stereo, and argue that the items were not gifts. If you are not married, he can take you to Small Claims Court and try to prove that the items in question were not gifts. In either circumstance, he probably is not going to sound very convincing.

25. Do I have to give back my engagement ring or my wedding ring?

If your abuser gave you an engagement ring and you broke up before you got married, you have to give the engagement ring back. However, if you did get married, you can keep the engagement ring. You keep your wedding ring, too.