A question that some people ask when they are getting divorced is whether their soon-to-be-ex is really seeking to retain half of the gifts that they gave during the marriage and can they do that?
The short answer is yes, interspousal gifts are subject to equitable distribution. For a gift to be considered interspousal it must be a gift given during the marriage from one spouse to the other spouse. Jewelry, a watch, artwork, and similar items can be considered an interspousal gift and the gift giver can seek his/her equitable distribution of these items at the time of a divorce.
Let’s back up quickly and determine qualified as a gift. To be considered a gift the property must meet 4 factors:
- The gift giver’s intent that the property is a gift;
- A transfer of the property without consideration (the receipt of something in return);
- The actual delivery of the gift; and
- Relinquishment of ownership of the gift.
If you were given property by your spouse during your marriage that meets the 4 factors above, it is an interspousal gift. Other than the jewelry and other items mentioned above, a house that was owned by one spouse prior to marriage is also considered an interspousal gift after marriage if the couple resides together in the house and the couple is comingling marital funds into the premarital house. For this to occur, the parties do not have to take any steps, such as adding the other spouse to the deed or the mortgage.
The only way to protect your premarital interest in our premarital house is through a prenuptial agreement. If you have a prenuptial agreement you can ensure that you retain your separate premarital interest in the property and that this interest is not conveyed into marital property subject to equitable distribution.
Another thing to keep in mind is that not all gifts acquired during a marriage by either spouse are subject to equitable distribution. Certain property is exempt, including inherited property or property that was given to one spouse by a third-party (as long as the gift was intended for only one spouse and not the couple). However, the spouse that is attempting to claim that the property is immune from equitable distribution has the burden to prove this immunity, which can be difficult due to the passage of time, lack of records, or if the gift giver has passed away.
If you are facing a divorce and would like to discuss your assets and equitable distribution, please contact us at 856-428-8334 or email firstname.lastname@example.org.