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legalgems, Lawyer
Category: Legal
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Experience:  Just Answer consultant at Self employed
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My wife had an affair with a stranger in the home with the

Customer Question

My wife had an affair with a stranger in the home with the children and repeatedly lied about it until I caught her with him. Thats just back story. I have filed for divorce, she should be served by tomorrow. I had moved out of the house over a month ago. I still had property at the house her and I lived in. This past Friday I was to begin moving that property out. We exchanged emails about what I would be taking. She said ok to my ladder but, I think purposefully, abstained from replying about my garage tools. These tools were Christmas gifts and graduations gifts from my parents as well as other assorted tools I had acquired over the years including some that I had acquired before the marriage. The Thursday before she told me she was moving her stuff out with the homewrecker and that I should come Saturday and Sunday. This was a lie, she can't move out until next weekend. Instead what she was doing Friday was packing up and pawning all of my garage tools and ladder and some other things to pawn them so that when I arrived Saturday I would walk into that and not have the tools necessary to put my car together so I could get it out. I contacted and had the police arrive but they said without court orders its marital property. Even worse the pawn story was a lie, the pawn shop only has a couple of items, my ladder (that in the email she agreed I could take) and most of my tools were not pawned. I suspect she let the homewrecker take my tools. How can I get my tools back? Can I somehow report them stolen? Will I be able to argue in the initial status conference that she has to return them to me? Can I refuse to give her permission to move her things out next weekend if she doesn't return my things? Please help!
Submitted: 1 year ago.
Category: Legal
Expert:  legalgems replied 1 year ago.

I am very sorry to hear this;

the police will not get involved during marital disputes as they will wait and allow the court to handle it as a civil matter.

A spouse has a fiduciary duty to one another, and by "wasting" either marital property, or the separate property of the other, that is a breach of that duty. The family law judge has jurisdiction over all marital property (and pending confirmation of the property to one spouse as separate property, also that separate property). The court can order the return of any wrongfully taken property, or they can order the other party to pay the replacement value of that property. It would be helpful in these type of situations to get a statement from the pawnshop owner stating who pawned the property (if they are willing- although that information can be subpoenaed when there is a pending court case). One may wish to purchase the property as evidence that it was pawned.

One can request a restraining order forbidding either party from removing any property until there is a neutral third party (ie a third party assented to by both parties, or the sheriff- they will do it if it is pursuant to a court order) and a court order that lists who is to take what property.

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Customer: replied 1 year ago.
Well the restraining order won't work, the property is already gone and missing and she will continue to lie and say the pawn shop must have done something with it. SO I expect she will tell the court she pawned it for monetary gain and has no clue where it is. Which is why I was hoping to report it as stolen property. Factually, they stole my things and disappeared with them. So the I can't do that? My only recourse is arguing it out in court?
Expert:  legalgems replied 1 year ago.

I thought you mentioned there was property still there that belonged to her?

Expert:  legalgems replied 1 year ago.

The police won't get involved until after a judge declares it is in fact separate property; but the judge can take the replacement value of that property and either order the party to reimburse that amount, or "offset" it at the end of the divorce when all the property is divided;

if a person takes property to the pawn shop it is presumed that if they don't retrieve it then they intended for the pawn shop to sell it so they would be liable based on the mere fact of taking it, without permission.

Customer: replied 1 year ago.
but it is her things and she has to move this coming weekend or the weekend after. Any third party would agree that she be allowed to move her things, she has to be out by the fourth as the property is being turned back over to the owner.
Expert:  legalgems replied 1 year ago.

OK; thank you for that clarification; I wasn't clear that it was rental property. Then in that type of situation one can still get a court order to have a third party there to document who takes what, so it can later be accounted for. That is not unheard of in contentious divorce cases.

Customer: replied 1 year ago.
I already have all my things out except a playset, washer dryer, truck tool box that she has in emails agreed to leave for me. So all I can do is argue for her to pay me the estimated replacement value in court?
Expert:  legalgems replied 1 year ago.

If the police won't step in (and unfortunately they usually won't when it is a domestic property dispute absent court order) then the only way to seek compensation is to ask for the return of the items, and if they are no longer in their possession, then the replacement value. But this can be punitive to the wrongdoing party-for example, if they sold it for pennies on the dollar to be spiteful, they can still be held liable for the full replacement value (ie to replace it- so often this means buying new) and even attorney fees and costs if the party deems the other person acted maliciously.

Customer: replied 1 year ago.
It is fairly obvious this was a calculated move just to hurt me and screw me over. She even admitted to the responding officers that it was out of vindictiveness.
Expert:  legalgems replied 1 year ago.

That will be interesting in court if the other party continues to make statements that put one in a bad light; a statement from the officer to that effect can help immensely -both to recover the full replacement value and attorney fees and court costs.

Customer: replied 1 year ago.
Expert:  legalgems replied 1 year ago.

You are most welcome; I hope this works out for you and your children.

This is the court website and it has forms/information for the whole divorce process:

It also has a flowchart so one can see what the steps are.

Expert:  legalgems replied 1 year ago.

If you have further questions on the above please post here; otherwise if you would rate this answer so I receive credit for assisting you it would be very appreciated. Thank you.