Does my wife have any rights to monetary gifts given to me prior to us getting divorced? 55 Answers as of June 28, 2013

My former wife and I have not lived together for over 6 years. I intend to file for divorce in the very near future. That being said, I just recently was given a monetary gift. Can my ex claim any rights to any of the money?

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Victor Varga | Victor Varga
No, gifts made to one spouse are generally not considered marital property.
Answer Applies to: Maryland
Replied: 8/14/2012
Joanna Mitchell & Associates, P.A.
Joanna Mitchell & Associates, P.A. | Joanna Mitchell
As long as you can prove it was a gift to you, then it is not marital property. You should consult with an attorney regarding this and any other potential issues that might arise in the divorce.
Answer Applies to: Florida
Replied: 8/14/2012
Bruning & Associates, PC | Mary D. Sump
The quick answer is no, your ex cannot claim any rights to your monetary gifts. Under Illinois law, gifts that either of you received during the marriage are that person's non-marital separate property to be awarded to him or her in the divorce. The situation gets sticky if you used any of your gift money to buy anything that benefited you both during the marriage. You may need to prove that the funds, and anything you bought with that money, is still your non-marital property by tracking it, even though another attorney could argue that it was transmuted into marital property. I recommend that you see a licensed attorney so you know the potential consequences within the Court case.
Answer Applies to: Illinois
Replied: 8/14/2012
Law Office of Melvin Franke | Melvin Franke
No, but a Judge may consider when dividing the assets.
Answer Applies to: Missouri
Replied: 8/14/2012
Law Offices of Arlene D. Kock
Law Offices of Arlene D. Kock | Arlene D. Kock
Gifts to one spouse from a 3rd party is considered separate property.
Answer Applies to: California
Replied: 8/14/2012
    Dennis P. Mikko Attorney at Law | Dennis P. Mikko
    It may depend on how the monetary gift was handled. If the gift has been kept in your name and co-mingled into marital assets, you have a good chance of keeping all of it. On the other hand, if it has been co-mingled into marital assets, a court will probably look at is as a marital asset to be divided in the divorce.
    Answer Applies to: Michigan
    Replied: 8/14/2012
    Harkess Law Offices | Nancy Harkess
    Some property acquired during a marriage is not considered "community" property - that is, it only belongs to the recipient as separate property. Usually, the proceeds from a personal injury lawsuit, gifts and inherited assets are not considered community property. However, even separate property that becomes commingled to the point it cannot be separated from the community property becomes community property.
    Answer Applies to: Nevada
    Replied: 8/14/2012
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    Hmmm...still married but not divorced even after six years of informal separation. I will bet you never talked with a lawyer about this. Not only is she entitled to a share of the "gift", she may well be entitled to spousal support based on the current duration of the marriage, and not on when you separated. Go to a family law attorney, now.
    Answer Applies to: Ohio
    Replied: 8/14/2012
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    Separate property is not divisible. Separate property is property you owned prior to marriage, or which you acquired during the marriage by gift or inheritance.
    Answer Applies to: Texas
    Replied: 8/14/2012
    Austin Hirschhorn, P.C.
    Austin Hirschhorn, P.C. | Austin Hirschhorn
    If you keep the money in a separate account in your name only, she should not be able to assert a claim that the money is marital property that she is entitled to share in particularly in view of the fact that you have not lived together for over 6 years and just recently received the gift.
    Answer Applies to: Michigan
    Replied: 8/10/2012
    Hanna Legal, LLC
    Hanna Legal, LLC | Jen Hanna
    In Wisconsin, gifts are usually not divisible in a divorce unless not doing so would cause hardship. You're probably safe, but it would be a good idea to consult with an attorney to make sure all the relevant facts are discussed.
    Answer Applies to: Wisconsin
    Replied: 8/14/2012
    Cook & Cook Law Firm, PLLC (SanAntonioDefenders)
    Cook & Cook Law Firm, PLLC (SanAntonioDefenders) | Megan V. Cook
    No, gifts given to an individual during a marriage are considered the individual's separate property. She does not have any basis for getting your gift as part of the community property division of your estate. Best regards to you.
    Answer Applies to: Texas
    Replied: 8/14/2012
    Dungan, Lady, Kirkpatrick & Dungan PLLC | Michael Dungan
    Strong probably not. You should keep the funds in a separate account in just your name, do not commingle them with any joint accounts.
    Answer Applies to: Michigan
    Replied: 8/14/2012
    Slotnick & Schwartz
    Slotnick & Schwartz | Leonard T. Schwartz
    No. A gift received by you and kept separate and apart from your wife's assets belongs solely to you in NJ.
    Answer Applies to: New Jersey
    Replied: 8/14/2012
    The Law Office of Cathy R. Cook
    The Law Office of Cathy R. Cook | Cathy R. Cook
    No, for two reasons. First, gifts to one spouse are separate property. Second, assuming you have been not only physically separated, but also financially separated, whatever each of you has accumulated since separation would be your own.
    Answer Applies to: Ohio
    Replied: 8/14/2012
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    She can claim lots of things. You will argue it is separate property and not fair to be given to her or even considered.
    Answer Applies to: Washington
    Replied: 8/14/2012
    Barbara Fontaine, Esquire | Barbara Fontaine
    If the money was a gift to you, she cannot claim the money.? Is there something else about this "gift"?
    Answer Applies to: Rhode Island
    Replied: 8/14/2012
    R. Jason de Groot, P.A
    R. Jason de Groot, P.A | R. Jason de Groot
    Property that comes into the possession of a spouse after separation is not considered marital.
    Answer Applies to: Florida
    Replied: 8/14/2012
    Fox Law Firm LLC
    Fox Law Firm LLC | Tina Fox
    If you have not commingled the funds and also depending on how long you have been Separated, we will argue that she does not have rights to the monetary gift and quite possibly Any other monies. You can call the office to discuss in more details as we do offer free 30 minute consultations.
    Answer Applies to: Illinois
    Replied: 8/14/2012
    Grace Law Offices of John F Geraghty Jr.
    Grace Law Offices of John F Geraghty Jr. | John F. Geraghty, Jr.
    It depends on the intent of the person who gave the gift.
    Answer Applies to: Georgia
    Replied: 8/14/2012
    Attorney At Law | Harry D. Roth
    No. Gifts and inheritances received during marriage are the separate property of the recipient.
    Answer Applies to: California
    Replied: 8/14/2012
    The Law Offices of Robert W. Bellamy
    The Law Offices of Robert W. Bellamy | Robert W. Bellamy
    She can make a claim, but if it is not product of the marriage she will not likely prevail.
    Answer Applies to: Alabama
    Replied: 8/14/2012
    Peyton and Associates | Barbara Peyton
    Gifts that you received as gifts just for you not you and your wife - are your separate property and are not subject to division in a divorce case.
    Answer Applies to: California
    Replied: 8/14/2012
    T.K. Byrne | Timothy K. Byrne
    She may but it is not a certainty.
    Answer Applies to: Mississippi
    Replied: 8/14/2012
    Michael S. Edwards, Attorney at Law, PLLC | Mike Edwards
    No.
    Answer Applies to: Utah
    Replied: 5/29/2013
    John Russo | John Russo
    In Rhode Island, assets obtain by gift and/or inheritance are in most cases not part of the marital estate.

    As long as you have not co-mingled the funds with marital monies, or it cannot be shown that you used the funds primarily to pay just marital debts or to improve marital assets you should be OK.

    Also, make sure you can show that the funds were gifted to you by clear and convincing evidence.
    Answer Applies to: Rhode Island
    Replied: 8/14/2012
    Reza Athari & Associates, PLLC | Seth L. Reszko
    Generally, gifts to you in your name are separate property and your wife has no rights to that gift.
    Answer Applies to: Nevada
    Replied: 8/14/2012
    Law Offices of Frances Headley | Frances Headley
    Gifts are generally the separate property of the party that receives the gift. You should consult a family law attorney to review all of the circumstances of the gift.
    Answer Applies to: California
    Replied: 8/14/2012
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    She can claim whatever she wants to claim, but what she gets is another question. Put and keep that money in a separate account under your sole name which is not commingled with any community funds.

    Get a signed Declaration or Affidavit from the giver of the gift that he/she made that gift to you, setting forth the date and amount.

    Keep the original check or other proof of the transfer of the funds to you. Keep any card(s) from the giver referencing the gift.

    Keep these items to assist you in proving that the funds were a post-separation gift made solely to you, and that you have segregated those funds from any community funds.
    Answer Applies to: California
    Replied: 8/14/2012
    Salladay Law Office | Lance Salladay
    Assuming you live in Idaho- the only state this response is intended for- gifts are separate property and not community, your wife has no claim to separate property.
    Answer Applies to: Idaho
    Replied: 8/14/2012
    Clos, Russell & Wirth, P.C. | Gary A. Russell
    Property, money, etc. acquired during a marriage is generally considered marital property. Gifts specifically given to only one party and kept separate can be considered separate property. Considering the length of separation and assuming the gift was only to you, then it should fall into separate property. However, the court has the authority to award separate property to the other party. You should have counsel to advise you and help you with the divorce.
    Answer Applies to: Michigan
    Replied: 8/14/2012
    Theodora Fader | Theodora Fader
    Gifts given to you separately would be considered your separate property. That being said, the court has authority to award one spouse's separate property to the other spouse in a divorce case, but it is not common.
    Answer Applies to: Michigan
    Replied: 8/14/2012
    THE LOCKHART LAW FIRM | CLAYTON LOCKHART
    The short "generic" answer is that she can file a claim for any property that was acquired while the two of you are still legally married. Then, once she does stake a claim to it, she will have to convince the judge that the property is considered "marital property" before the judge grants her an interest in the property. And yes, money that you received while you and your spouse were separated may be determined to be "marital property" and the judge orders that she be given a share of those funds.
    Answer Applies to: Mississippi
    Replied: 8/14/2012
    Ezim Law Firm | Dean Esposito
    Any gift given solely to you is your separate property.
    Answer Applies to: Louisiana
    Replied: 6/28/2013
    Robert J. Merlin, P.A.
    Robert J. Merlin, P.A. | Robert J. Merlin
    No. Gifts from someone other than the spouse are legally not marital assets subject to division, so long as you do not change it into a marital asset, such as by depositing the funds into a joint account with her.
    Answer Applies to: Florida
    Replied: 8/14/2012
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Based on the limited facts stated in your question, the answer is: "no." Such "gift" is your separate property. Wouldn't matter even if you weren't separated. Gifts to one party during marriage, including after separation, are the separate property of the person receiving such gift.
    Answer Applies to: California
    Replied: 8/14/2012
    Burnett Evans Banks
    Burnett Evans Banks | Paul Evans
    If the intent of the gift was that it was solely to you, then it is non-marital property. However, if you commingle it with marital property, such as place the funds in a joint bank account with your spouse, then the presumption becomes that you intended it to become marital property. Keep it separate to avoid this issue.
    Answer Applies to: Missouri
    Replied: 8/14/2012
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    In Colorado property owned before marriage or property acquired during the marriage by gift or inheritance is considered "separate property" and is not subject to division along with the "marital property" as long as you don't comingle it with marital property. (i.e. don't deposit the funds into joint account). In the divorce case you will have the burden of proving the money was given to you as a genuine gift and not something else. If you can do that, your wife has no legitimate claim to the money.
    Answer Applies to: Colorado
    Replied: 8/14/2012
    Law Office of Gregory Crain | Gregory Crain
    Depends on the nature of the gift.
    Answer Applies to: Arkansas
    Replied: 6/28/2013
    The Law Office of Erin Farley
    The Law Office of Erin Farley | Erin Farley
    Absent being included in income calculations for support purposes, income subsequent to separation is the separate property of the recipient.
    Answer Applies to: California
    Replied: 8/14/2012
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    If you are separated already, and if you received this gift after the separation and it was given just to you, then no. Your spouse would have no interest in this gift.
    Answer Applies to: California
    Replied: 8/14/2012
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    If it was given as a gift to you alone, it most likely would be considered your separate property.
    Answer Applies to: Georgia
    Replied: 8/14/2012
    DEAN T. JENNINGS, P.C.
    DEAN T. JENNINGS, P.C. | Dean T Jennings
    No.
    Answer Applies to: Iowa
    Replied: 5/29/2013
    Smith, Gildea & Schmidt | Michael Gene DeHaven
    In Maryland, all "marital property" must be identified and subject to equitable distribution by a court considering a complaint for divorce. Marital property means that property acquired by 1 or both parties during marriage. However, any property acquired before the marriage, acquired by inheritance or gift from a third party, excluded by a valid agreement or directly traceable to any of these sources is not marital property.
    Answer Applies to: Maryland
    Replied: 8/15/2012
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    Since you are separated long term it should not be a problem. However, to be safe, I would keep the gift entirely separate if it is money and not comingle it with your everyday funds and you should be able to claim it as separate.
    Answer Applies to: Michigan
    Replied: 8/14/2012
    ADELMAN & SEIDE, LLP
    ADELMAN & SEIDE, LLP | GEORGE N. SEIDE
    This advice does not establish an attorney client relationship. That may be accomplished only by a written agreement. If they were true gifts and not commingled with community funds, they are your separate property and she has no claim to them.
    Answer Applies to: California
    Replied: 8/14/2012
    The Law Offices of Tres A. Porter | Tres A. Porter
    No, not if the gift was solely to you and as long it is truly a "gift" and not a disguised form of compensation for your time skill or labor.
    Answer Applies to: California
    Replied: 8/14/2012
    Donaldson Stewart, PC
    Donaldson Stewart, PC | Monica H. Donaldson Stewart
    Generally speaking, a gift is considered sole and separate property, and therefore not subject to division in a divorce.
    Answer Applies to: Arizona
    Replied: 8/14/2012
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    No. Gifts are the separate property of the person who received the gift, regardless of when.
    Answer Applies to: California
    Replied: 6/28/2013
    Steven Alpers | Steven Alpers
    Money or property earned or given to you as a gift after the separation are separate property. Separation is living separate with the intention to get divorced so the sooner the better to avoid future confusion.
    Answer Applies to: California
    Replied: 8/14/2012
    Gregory C. Graf
    Gregory C. Graf | Gregory C. Graf
    Gifts are not marital property unless you jointly title the gift. For example, if you receive a $1,000 cash gift and put it into an account in your name only it remains separate property. If you place it in a joint account it becomes marital property.
    Answer Applies to: Colorado
    Replied: 8/14/2012
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    No. she has no claim to that gift. that is not the end of the story, however.
    Answer Applies to: New Jersey
    Replied: 5/29/2013
    Marca Tanner Attorney at Law | Marca Tanner
    Gifts, inheritances, etc., that are given to one spouse by family, etc., during the marriage are considered separate property so long as the funds (or whatever) have not been "co-mingled." Separate property is awarded to the party who received it/owned it during the marriage. Co-mingling means that the asset is used for the benefit of both parties, and not just the one who received the gift, making it not separate property anymore. If you have been separated for a period of time, and the money was given to you personally, and has not been used for the benefit of the marriage, no, she is not entitled to it. That said, make sure that you keep it separatedon't pay the mortgage with it in the house she's living, don't pay off her car with it. You must keep it totally separate from anything that has to do with marital property.
    Answer Applies to: Utah
    Replied: 8/14/2012
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Proving that the characteristic of an asset is non-marital falls on the proponent. That means you have the burden of proving that any gift was a gift to you alone and not a gift to the family.
    Answer Applies to: Minnesota
    Replied: 8/14/2012
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