How are gifts received prior to marriage treated during a divorce? 24 Answers as of May 23, 2011

Are any gifts I received while married considered to be part of the assets to be divided between me and my spouse?

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Beaulier Law Office
Beaulier Law Office | Maury Beaulier
Minnesota statutes list non-marital assets as real or personal, acquired by either spouse before, during, or after the existence of their marriage, which (a) is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse; (b) is acquired before the marriage; (c) is acquired in exchange for or is the increase in value of property which is described in clauses (a), (b), (d), and (e); (d) is acquired by a spouse after the valuation date; or (e) is excluded by a valid antenuptial contract. All property is presumed marital and it is up to the party seeking a different characterization to prove the claim with documentation.
Answer Applies to: Minnesota
Replied: 5/20/2011
Michael Anthony Wing, P.C.
Michael Anthony Wing, P.C. | Michael Anthony Wing
If used for the benefit of the marriage, they will likely be considered part of the marital estate. The divorce court can still consider the nature and source of the gifts during the distribution of the marital estate. Stay well.
Answer Applies to: Alabama
Replied: 5/19/2011
Apple Law Firm PLLC
Apple Law Firm PLLC | David Goldman
Depending on where you live, and they type of gift, they are generally separate property in Florida. IE an engagement ring.
Answer Applies to: Florida
Replied: 5/18/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
No they are not. Texas community property rules are simple in the grand scheme of things. Everything is community UNLESS it is separate. That is backwards, I know, but it is how we do it. Separate property consists of items owned prior to marriage, items acquired by gift or devise (inheritance) regardless of whether it occurred prior or during the marriage, and items that can be shown to be purchased during the marriage with monies or assets that are separate (ie: you have a sports car prior to marriage, you get married, sell the car and use the proceeds to buy a family car, the family car is separate property). Applying the rules, these items you inquire about are separate property and not part of the community to be divided. However, the person claiming them as gifts has the burden of establishing them as gifts. If you say they are gifts and the other side says "so what" that is good enough, but if the other side says they are not gifts, then you have to prove it.
Answer Applies to: Texas
Replied: 5/18/2011
Edwin Fahlen Attorney at Law
Edwin Fahlen Attorney at Law | Edwin Fahlen
Gifts, as long as they are not co-mingled with community properties assets remain separate property of the receiving spouse. If the item is a tangible object, then there is rarely a problem. Problems arise when money or property are received and then "mixed" with community money or property. Then tracing may be required to retain the separate property character.
Answer Applies to: California
Replied: 5/18/2011
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    The rules on gifts are difficult. If the gift was clearly made to just you, then it is your separate property. If not clear, then it may be community property.
    Answer Applies to: California
    Replied: 5/18/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Gifts, whether received before or after marriage, are considered the separate property of the recipient and are not subject to equitable distribution in a divorce. Frequent issues related to gifts during a marriage often involve deciding whether the gift was to one person or to both spouses and whether, depending on what the item is, it was truly a gift.
    Answer Applies to: Colorado
    Replied: 5/18/2011
    Berner Law Group, PLLC
    Berner Law Group, PLLC | Jack Berner
    If you reside in Western Washington, feel free to call me to schedule a free initial consultation-either in person or by phone-about your situation. Depends on how and by whom the gifts were received and what happened to them.
    Answer Applies to: Washington
    Replied: 5/18/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    In Washington State, the Court looks at both community and separate property (including gifts) when making a fair and equitable division of assets and debts. In most cases however, separate property, including gifts, will remain the separate property of the receiving party.
    Answer Applies to: Washington
    Replied: 5/18/2011
    Howard W. Collins, Attorney at Law
    Howard W. Collins, Attorney at Law | Howard W. Collins
    Gifts prior to the marriage are generally considered non marital property so they are generally awarded to the recipient. Gifts during the marriage are generally presumed to be marital property and subject to inclusion into the marital pot for valuation and determination of who gets which item. Your question is slightly more complicated than my general answer but the above is a good starting point for analysis.
    Answer Applies to: Oregon
    Replied: 5/18/2011
    Seattle Divorce Services
    Seattle Divorce Services | Michael V. Fancher
    Under Washington law, gifts and inheritances are treated as separate property. However, even separate property is before the court to award as appropriate.
    Answer Applies to: Washington
    Replied: 5/18/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    No, gifts received before marriage - if they are completed gifts and not given in contemplation of marriage - are the property of the person to whom they were given, with no claim available to the giftor of the gift. However, if it is an engagement gift, such as the male's mother's engagement ring, given to a woman who the man was going to marry. In that situation, then the mother-in-law-to-be should be given her ring back since it was given to carry on a tradition and could be considered a gift in contemplation of marriage. Good luck.
    Answer Applies to: New York
    Replied: 5/18/2011
    Fredric H. Aaron, Attorney at Law, P.C.
    Fredric H. Aaron, Attorney at Law, P.C. | Fredric Harlan Aaron
    In New York State, any gifts or other property you owned or received before your marriage are not considered part of your marital estate and therefore not subject to equitable distribution. In other words, you get to keep the property you brought to the marriage, including any gifts you received. However, there is an exception to this rule. If you put your spouse's name on this separate property during the course of the marriage (such as putting her name on a bank account, stock certificate or real estate deed), then your spouse may claim that you decided to make this separate property part of the marital estate. In addition, if your spouse owned a similar item of property prior to the marriage, and sold his/her property with both of you using the proceeds of such sale, a claim can be made that you agreed to make your separate property into marital property. As for the second part of your question, if you personally received a gift during the marriage, and it was not intended for your spouse as well, then this gift will not be subject to equitable distribution, unless you did one of the acts outlined above which would have the effect of making such gift part of the marital estate.
    Answer Applies to: New York
    Replied: 5/18/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    This is part of a discussion that you should have with a divorce attorney. To answer your question: it will take some investigating to make sure that gift is still separate and can be claimed as exempt. The general rule is that gifts and inheritances that you get from your family are not divided between you and your spouse ('exempt from equitable distribution') HOWEVER, that is not the end of the story. As I said, this will take some advice from an attorney. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the first office visit. I know people worry about how expensive a lawyer is, so I am careful to be as inexpensive as I can for my clients. Before you spend a dime, you will know how much this is likely to be.
    Answer Applies to: New Jersey
    Replied: 5/18/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    You have asked two different questions, but in any event any assets held during the marriage are technically assets of the marital estate no matter when acquired. However, as part of a property distribution, the court must look at each party's contribution to the acquisition preservation or maintenance of an asset. Most times an attempt will be made to carve that asset out of the marital estate based on this criteria (or at least its value at the time of the marriage). If you have further questions let us know.
    Answer Applies to: Connecticut
    Replied: 5/18/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    Gifts to you made prior to marriage are your sole and separate property. Gifts made to you during the marriage are your sole and separate property (but see below). Gifts made jointly to you and your husband are community property. Pursuant to Family Code Section 852(c), gifts to you from your spouse of tangible articles of a personal nature used solely or principally by you which are not substantial, taking into account the circumstances of the marriage, do not need to comply with Family Code Section 852(a), which provides that a transmutation (conversion of the character of an item from community to separate or separate to separate, or separate to community) is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. A car is not considered a gift of a personal nature. Depending on the nature of the item and its value, a gift may or may not be considered to be community property.
    Answer Applies to: California
    Replied: 5/17/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    No, items that are truly gifts, whether given prior to or during the marriage to one spouse, are normally not considered marital property and belong soley to the spouse to whom they were given.
    Answer Applies to: Virginia
    Replied: 5/17/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    First of all, were the gifts received "prior to marriage" or "while married"? You said both. At any rate,gifts to one person, married or not, are separate property, and not subject to division or partition in a dissolution.
    Answer Applies to: California
    Replied: 5/17/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    Gifts received before marriage are the separate property of the person who received the gift. Same is true of gifts received during marriage (i.e., presumed to be separate property). Unless transmuted during marriage by various acts of the property owner, such property should be confirmed to the owner as his/her separate property as part of the divorce.
    Answer Applies to: California
    Replied: 5/17/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    It depends, gifts can be separate property it will depend if gift was made to you or the both of you. But gift are generally awarded to the person who got them.
    Answer Applies to: California
    Replied: 5/17/2011
    Law Office of L. Paul Zahn
    Law Office of L. Paul Zahn | Paul Zahn
    They are the separate property of the recipient spouse. They are not community property to be divided up between the parties. If you are in my area and are looking for an attorney, please contact me for a free consultation.
    Answer Applies to: California
    Replied: 5/17/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    All assets, separate and community are before the court to be divided. Gifts, if only to you, are usually your separate property and you tend to get back your separate property if a fair and equitable division can be achieved based on just the community assets. Good luck.
    Answer Applies to: Washington
    Replied: 5/17/2011
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