QUESTION
How can I get back personal property that was mine prior to marriage?
Asked on Jan 24th, 2013 on Civil Litigation - Texas
More details to this question:
I had a diamond that was past down to me from my grandmother in 1987. I met my ex-wife in 1990. I put it in my ex-wifes ring and she used it as her wedding ring. It is all of my grandmother that is left. She says that she still has it but refuses to give it back to me. I think she sold it but cannot prove otherwise. My mother is willing to testify that she gave me the diamond and where it came from. I just want the diamond, not the setting.
1 ANSWER
Kevin Spencer
You have a practical problem in addition to your legal one. Your legal problem is that you have the burden of proof that you did not give her the diamond, but was only letting her use it and that, now, because you all are divorced, it belongs to you. This is an impossible task for two reasons (1) no one is going to believe that you did not give it to her during your marriage and (2) if it was yours in the scenario I described above, then you should have fought that and obtained an order requiring her to give it back to you from the divorce court; in other words, it should have been in your Divorce Decree. Because it was not awarded to you in the divorce, I am sure your decree has language in it that says, "whatever is in her possession is hers and whatever is in your possession is yours." This is a catchall phrase that is commonly used in divorces. If that language was in your Divorce Decree, then it belongs to her. But, because it was not in your Divorce Decree, res judicata applies, which means, your claims are now barred because you should have litigated them before in the divorce case and you did not. In other words, you cannot re-litigate matters that you should have litigated during the case that was pending between you and her previously.
Your practical problem is that pursuing her to get it back will probably cost more than the diamond is worth. Unless it is a 4 or 5 carat diamond worth $50,000-100,000, your litigation costs could, and probably will, be greater than the diamond itself.
Unfortunately, it is my opinion that you have no tenable legal position that you can non-frivolously assert and, my counsel would be, that you should not throw good money after bad chasing a diamond that may not have much value other than sentimental; but, that probably has less value than what it would cost to get it back.
I am sorry to give you such bad and disappointing news. But, you should get a second opinion, if you still want to pursue it.
Kevin Spencer
www.spencerlawpc.com
Answered on Jan 26th, 2013 at 11:50 AM