October 12, 2006

Ask The Lawyer

Personal Property Arbitration can help with division of property when divorce is imminent

This week's question:
My wife and I are having marital difficulties and we are working on dividing our household goods. We both want some items and we have a big difference of opinion as to what several items are worth. Is there a simple, inexpensive solution to these problems?

Steve S.
Almaden Valley

Dear Steve:
There are a few things you can do, Steve. You may draw up a list of the disputed items and then flip a coin as to who chooses first from the list, and then go down the list in alternating fashion.

If you have substantial differences of opinion as to value (i.e., as to what various items are worth), you may want to have an appraisal done by a certified personal property appraiser. Check online or the yellow pages under "appraisers." That may cost several hundred dollars but it may save you thousands of dollars later in legal fees.
In working on your agreement, remember that you are dealing with current fair market value, not purchase price. Look at garage sale prices or ads in the paper prices, not what new items are selling for in the big furniture store.

If all efforts at settlement on the household goods fail, you can look into personal property arbitration in Family Court. Once a legal proceeding is filed, you can choose (or be ordered to) this form of arbitration. Of course, judges do not like taking up valuable court time bickering about the pots, pans, and dishes. And you will find that attorney's fees on both sides quickly consume the value of that old kitchen or living room set.

The process is designed to help you resolve property division issues. The person who will help you is a lawyer or other trained individual who is a volunteer and is acting as a court-appointed referee and arbitrator at your property division session. You are usually advised to see the Settlement Orientation Video, which is shown prior to most settlement conference calendars at court prior to your property division session. The sessions will be conducted informally, and there will be no court reporter or transcript of the proceedings.

The arbitrator does not represent either party, and the proceeding is not a confrontational process, with each person represented by his or her own attorney. Instead, each party is expected to appear and support their own position as to valuation, characterization, or disposition. All matters are confidential as to outsiders except the court, but between the parties nothing is confidential.

Thus, if the arbitrator speaks with one party separately (either in person or by telephone), that information is available to the other party. The arbitrator cannot be a witness for either of the parties in court, but the arbitrator’s report of a statement of decision shall be filed in court and support a judgment that is binding on the parties. Neither party can sue the arbitrator for any acts or advice given during the property division session. The arbitrator has quasi-judicial immunity.

The arbitrator’s role is to promote communication in order to reach agreement between the parties, if possible, and if not, it is the further role of the arbitrator to hear the matter and make a final binding decision on the issue. This would include defining issues, developing options, resolving conflict, and making a final binding decision as to characterization, valuation, and division of all the personal property, of whatever type and wherever located, such as household goods, vehicles, boats, jewelry, and the like.

The topics for arbitration are decided by the parties and the arbitrator, or the judge if necessary. Real property (land, houses, etc.) is usually not divided at the property division session. The arbitrator has the power to define issues or limit the scope of other issues beyond the personal property of the parties.

The decision of the arbitrator shall support the issuance of a binding court judgment. The parties understand that they are giving up the right to have a hearing to determine the issues presented to the Arbitrator, to call witnesses other than permitted by the arbitrator, cross-examine witnesses, and otherwise have formal legal proceedings on the issues submitted to the arbitrator.

Each party promises to and shall fully disclose in advance all relevant facts and supporting documentation to the other party. If necessary, the parties may consult with accountants, appraisers, advisors, attorneys, or anyone else they wish prior to the arbitration. Usually, the arbitrator will not allow nor solicit testimony from any witnesses at the arbitration. Sworn written statements under penalty of perjury may be considered if the arbitrator wishes. The arbitrator may close the proceedings to all persons but the parties, and otherwise shall have complete discretion in the conduct of the arbitration to achieve an impartial and final decision on the issues submitted.

Attorneys are not allowed to be present at the arbitration session. The parties are informed that in proceeding in this fashion they are giving up their right to have an attorney present, and to proceed with the normal legal formality, procedures, and expense. The parties agree to appear and represent themselves in this informal proceeding.

If either party wants legal advice or legal review prior to the signing of an agreement to arbitrate, that party should contact his or her own attorney or the Lawyer Referral Service at (408) 971-6822.

Generally, the arbitration sessions will last one to one and one-half hours. All forms, including your proposal for the division of the property, must be fully prepared prior to the meeting. You will be asked to bring three clean unmarked copies of each property list or form declaration to your arbitration session, along with any documents of title (e.g., pink slips), proof of value (e.g., appraisal reports), or documentary support (e.g., receipts) for any particular allocation of possession or valuation of each item.

The personal property arbitration session will normally be scheduled through the domestic calendar office (408-534-5710 or 408-882-2900) on Friday mornings at 9 a.m. or 10:30 a.m. They are typically held at the courthouse at 99 Notre Dame, San Jose. There are no fees or costs for this meeting.

The issues of child support, child custody, visitation rights, and/or spousal will not normally be resolved by the arbitrator at your property division session. There are other ways to resolve those issues.

Good luck, Steve. I hope this works out well for you.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.