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Giving and Receiving Gifts When Married: What Happens To Those Gifts in a Divorce?

By Toni Peck, Esq.

We’ve all seen the commercials during December suggesting the perfect gift for your spouse is a new car, a piece of jewelry, or an expensive piece of sports equipment. Sometimes one spouse will put a piece of property into the name of their spouse for one reason or another. What happens to those gifts in a divorce? Will those gifts be divided between the two of you by a judge? Below are some answers to commonly asked questions by those contemplating divorce.

I bought my husband a car for Christmas. Does that mean he gets that in the divorce?

Florida uses the concept of “equitable division” to fairly divide the assets of the parties in a divorce. Under Florida Law, courts start out by classifying all of the assets of the parties into two categories: marital assets belonging to the marriage, which are divided in a divorce, and non-marital assets which belong solely to one spouse or the other and are not subject to division. Simply stated, a gift given by one spouse to the other belongs to the marriage and is subject to equitable division. So this means that the car can be awarded to either spouse in a divorce, so long as the other spouse receives other assets or money that equals the value of the car.

I bought my house before I married my wife. After the wedding, I put her on the deed. Could she get the house if we divorce?

In most instances, yes, it is possible for the wife to be awarded the house. To prove an item was given or received as a gift from a spouse, a party must show there was intent of the giver to make a gift, and that the gift giver actually delivered the gift, and the other person received and accepted the gift.   When the gifts are made between a husband and wife, and property is owned as tenants by the entireties, there is a presumption that a gift was made. So if a husband signs a quitclaim deed to his new bride for the house he bought before the marriage, putting her name on the title of the house without requiring her to pay for half of the value of the house to get her name on the deed, and the wife accepts the deed and records it, the court will view this as a gift from the husband to the wife and the entire value of the house would be subject to equitable division by the court as a marital asset without regard to who actually purchased the home and contributed financially to its upkeep. In some scenarios, the wife could keep the house, especially if the value of other assets the husband is receiving in the divorce is equal to the value of the house.

My parents want to give me money for the holidays? Does that money automatically belong to my spouse, too?

What about a gift or an inheritance that was given to just one spouse from someone other than their husband or wife? This can be the separate, non-marital property of the receiving spouse. However, the receiving spouse must not only prove the property was given to him or her as a gift or inheritance, but also prove that he or she kept the property separated from the other assets of the marriage.

For example, say a parent gives his married daughter a $1,000 check for the holidays. In order for this money to retain its characteristics as separate property, the check would need to be written only to the daughter, and she would have to deposit the check into a separate bank account owned only by the wife, and she must then never deposit any money into the account that was earned during the marriage and not spend the money on marital expenses such as bills.

If you are set to receive a substantial gift or inheritance during your marriage, it is a good idea to consult with a marital and family law attorney about protecting that gift or inheritance, including whether it is advisable to sign a postnuptial agreement between the spouses regarding the gift or inheritance.

Do I have to give back my engagement ring?

Finally, what about gifts your spouse gave you before the marriage, most notably the engagement ring? A gift between unmarried people who are not yet married, including engagement rings, is not a gift between spouses, and, assuming the property is not later comingled together with marital assets, the property remains non-marital property. So no, you do not need to give back your engagement ring under Florida law you if get divorced.  But if you never get married and you call off the wedding, you must return the engagement ring.

Should you have additional questions or need assistance in a divorce or family law matter, I may be reached at toni.peck@henlaw.com or by phone at 239-344-1302.

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