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Who keeps the family home and items upon divorce? Lessons from the Kevin Costner case

Who keeps the family home and items upon divorce Lessons from the Kevin Costner case

The high-profile divorce of Kevin Costner and Christine Baumgartner has brought to light many key issues that couples must consider when going through divorce proceedings.

From whom occupies the matrimonial home to how household items are divided upon divorce, our family team explores this common area of dispute.


Occupation of the matrimonial home

The first issue to hit the headlines was a reported dispute over their occupation of the family home. It was suggested that Baumgartner was required to leave the property under the terms of the couple’s pre-nuptial agreement but was refusing to do so. The issue reportedly needed the intervention of a Judge and — after a hearing — Baumgartner was required to vacate the property.

While laws dealing with the occupation of matrimonial homes differ between the US and England, it is a common cause of dispute after a marriage has come to an end. Some couples are in the fortunate position of being able to pay for alternative accommodation or stay with friends and family while longer-term issues are resolved. For others, an Occupation Order is a possible solution, but this isn’t available or proportionate in every case. This can leave couples in the unfortunate position of having to share a house long after their relationship has ended.


Division of belongings

With the physical separation of households comes the question of possessions and who gets what.  Again, with the cost of living so high, many people want to avoid any unnecessary expense associated with buying replacement items. This can lead to lengthy debate about how household and personal items are shared.

It is this issue that has returned the Costner/Baumgartner divorce to the fore, amid reports that the division of their personal possessions also required the adjudication of a Judge. Reports suggest that Baumgartner provided a list of items that she wanted to remove from the property, some of which were not agreed to by Costner. Some items were not identified with sufficient detail, with assertions that lists of “some plates and bowls / silverware”, “some pots and pans” and “personal electronics” were  “hopelessly vague and ambiguous.”

Although reports suggest that the Judge addressed the dispute in detail, it’s important to understand that in England, Judges rarely become involved in disputes about contents unless they have particular significance. It can quickly become disproportionate to argue over small items, given their value.


A petty dispute?

Although some media outlets have branded the dispute "petty", such labels do a disservice to the depth of emotions that can come with the seismic changes divorce can bring about.

While it may appear surprising that two multi-millionaires could argue so ferociously over household items like pots and pans, the couple’s dispute serves as a stark reminder of how the smallest things can become a battleground during a contentious separation.

It’s not wrong to feel attached to ‘things’ at a time when everything is changing. However, it’s always important to remember proportionality. Try to avoid becoming sucked into a dispute that ends up costing far more than the items are worth, or which saps time and emotion when there are bigger issues to address. It’s always important to look to the future and reflect on what has long-term importance as well as short-term relevance.


Financial orders — the need to be specific

An important takeaway from these latest reports is that vagueness in these discussions can cause problems later down the line.

Once a financial order has been made in divorce proceedings, the terms of the order are final and neither party will be permitted to make any further claims against the other. While matrimonial assets of high financial value will typically be dealt with as part of any settlement, if a party wishes to keep a specific item on divorce — for example a household or sentimental item such as a family heirloom — it’s important that this is clearly set out in a schedule annexed to the financial order.

If the final order fails to specify who will keep the item, the general rule is that it will remain with the person who is in possession of it at that time. If the party in possession refuses to hand over the item, it can be very difficult to retrieve.

If you are thinking about (or are involved in) divorce proceedings, you should start by creating a comprehensive list of all household contents. Once compiled, you should discuss with your spouse and identify which items you would each like to keep and then divide the rest equally. If you are unable to reach an agreement on how to divide the surplus items, you could list them for sale and divide the proceeds.


How we can help

Our family law team has vast experience of helping people protect what matters most during divorce proceedings or via pre-nuptial agreements.

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