Who owns gifts after a divorce? 30 Answers as of July 07, 2011

Is a car that my father gave us as a wedding present community property or is it mine because my dad gave it to us?

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Seattle Divorce Services
Seattle Divorce Services | Michael V. Fancher
Under Washington law that depends on who your father gave the car to. If he gave it to both of you, then it is community property. If he gave it to just you, then it is your separate property. I think that the presumption would be that a wedding present was given to both of you.
Answer Applies to: Washington
Replied: 7/7/2011
Vincent J. Bernabei LLC
Vincent J. Bernabei LLC | Vincent J. Bernabei
This depends on whether your father gave the car to you alone or to both of you. The general rule is that it is a marital asset because it was acquired during the marriage, so it will probably be divided equally. There are many exceptions to this general rule. You should contact an attorney.
Answer Applies to: Oregon
Replied: 7/5/2011
Horizons Law Group, LLC
Horizons Law Group, LLC | Michelle B. Fitzgerald
Generally it will be marital property. However, there are exceptions for various reasons. Length of marriage, property brought to the marriage, etc.
Answer Applies to: Wisconsin
Replied: 7/5/2011
John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
Anything that is truly a gift to one spouse remains that spouse's separate property unless he/she does something to convert it to marital property. Whether something is or is not truly a gift is a question of fact to be decided by the court if the parties disagree. The fact that the gift was from your father could mean he intended it only for you; on the other hand, the fact that he did it as a wedding gift could mean he intended it to be to both of you. Based on what your father did for the title certificate, what he said then, and what he says now, a judge will decide what to believe. But, remember that the law presumes that property is marital until someone proves it is not.
Answer Applies to: Colorado
Replied: 7/5/2011
Law Office of Karen A. Clark, L.L.C.
Law Office of Karen A. Clark, L.L.C. | Karen A. Clark
In general, gifts that are given to the couple including wedding gifts are usually considered community property. However, there are some circumstances where a gift made to one spouse during the course of a marriage can be considered separate property. I would suggest that you discuss your situation with an attorney.
Answer Applies to: Washington
Replied: 7/5/2011
    Law Office of Daniel B. Rubanowitz, APC
    Law Office of Daniel B. Rubanowitz, APC | Daniel B. Rubanowitz
    Generally, gifts are personal and the separate property of the intended. For example, if wife gives husband a men's watch for his birthday, the gift is considered to be husband's separate property. Gifts given to both people by a third person, such as wedding gifts, are generally considered to be community property. If your father gave you both a car as a wedding gift, it is presumed to be community property absent additional facts. This can be a very complicated issue if the gift is considered to be an investment for the benefit of the community, even if one person may be able to use it over the other. For example, there was one case where a very very expensive item of women's jewelry was purchased and wife argued that it was her separate property because it was a gift and because only she was able to use and enjoy the item of women's jewelry. However, husband successfully argued in Court that it was not a gift given its extremely high cost and value. Rather, husband argued that it was an investment for the benefit of the community and that wife merely benefited by being able to wear the item of women's jewelry. You should consult with an attorney on this potentially complicated area of family law and community property. Good luck.
    Answer Applies to: California
    Replied: 7/5/2011
    ROWE LAW FIRM
    ROWE LAW FIRM | Jeffrey S. Wittenbrink
    A gift given to both parties jointly is community property. If the gift is given solely to one party or another, it is that person's separate property.
    Answer Applies to: Louisiana
    Replied: 7/1/2011
    Law Office of Robert L. Fiedler
    Law Office of Robert L. Fiedler | Robert L Fiedler
    You used the magic word "us" referring to whom your father gave the gift. While you can argue that it was your father and the car you drive (assuming it is), he can argue that it was a gift to the two of you and part of the marital estate.
    Answer Applies to: Connecticut
    Replied: 7/1/2011
    Glenn E. Tanner
    Glenn E. Tanner | Glenn E. Tanner
    Your divorce decree tells you who owns what after a divorce. If you are not yet divorced and asking if the gift from your father is separate or community, it depends who he gave it to. If he gave the car to both of you, it's community. If he gave it to you , it's separate. If he gave it to your husband, it is your husband's separate.
    Answer Applies to: Washington
    Replied: 7/1/2011
    The English Law Firm
    The English Law Firm | Robert English
    If he gave it to the both of you as a wedding present, then it is community property. If he gave it specifically to you, then it would be your separate property. Bear in mind, if both your names are on the title, then that creates a greater presumption of community property.
    Answer Applies to: California
    Replied: 7/1/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    If your dad gave it to "us", it is community property. The fact that your father was the source of the gift is irrelevant. If a card accompanied the gift, it would be important to see specifically to whom it stated that the car was given. If that card reflects that it was given only to you, the car would be your separate property. If the card is directed to you and your spouse and states that the car was given to you and your spouse, the car would be community property. If the card doesn't reflect to whom the car was given, bear in mind that wedding gifts are typically given to the new married couple, and would most likely be held to be community property. Your father's deposition could be taken but if he testifies that he gave the car just to you, his credibility and bias could be called into question since he is your father.
    Answer Applies to: California
    Replied: 7/1/2011
    Gregory T. Buckley, Attorney at Law
    Gregory T. Buckley, Attorney at Law | Gregory T. Buckley
    Usually a piece of property that comes into the marriage from outside the marriage (not acquired with marital assets) will belong to the party from whose family it was acquired. This can be complicated if marital assets were used to improve the property or make payments on it.
    Answer Applies to: Florida
    Replied: 7/1/2011
    Law Office of Michael W. Bugni
    Law Office of Michael W. Bugni | Jay W. Neff
    Who owns a gift after a divorce depends on several factors. First, it will depend on how the gift was given. A gift from a third party (your father) to the couple (you and your spouse) is community property. However, a gift from a third party to just you is your separate property. Second, it will depend on what the divorce decree actually says. If the decree says that the car is yours, then, it is yours. If, however, you are asking about how the property might be divided: In the State of Washington, ALL the property is before the court and subject to division by the court. This means that the court has the power to divide not only the community property, but, also your separate property and your spouse's separate property, in any way that the court deems is necessary to reach a fair and equitable result. Whether the court will invade separate property will depend on a number of factors. However, as a very rough rule of thumb, the court will generally leave separate property alone if there is enough community property that the court feels it can be fair by just dividing community property.
    Answer Applies to: Washington
    Replied: 7/1/2011
    Rhonda R. Werner Schultz, PL
    Rhonda R. Werner Schultz, PL | Rhonda R. Werner Schultz
    In Florida, if the gift was given to both of you, it is a marital asset and will be divided in divorce. If the gift was from a third party (i.e. Dad) to only one of you, it is nonmarital. There are tricky rules on determining whether a nonmarital asset has a marital component and you should contact an attorney to review your situation and advise you about your circumstance if this is the case.
    Answer Applies to: Wisconsin
    Replied: 7/1/2011
    The Davies Law Firm, P.A.
    The Davies Law Firm, P.A. | Robert F. Davies, Esq.
    You need a good divorce attorney to help you with this and other issues. The car - I would argue that it was a gift to YOU by your father. Give me a call, make an appointment to come see me, and let's get moving on this for you. No charge for the telephone call and no charge for the first office visit.
    Answer Applies to: New Jersey
    Replied: 7/1/2011
    Willick Law Group
    Willick Law Group | Marshal S. Willick
    The identity of the giver is irrelevant - the question really is "to whom was the car given." If to YOU, it's yours; if the two of you, it belongs to the two of you, and is marital property to be divided.
    Answer Applies to: Nevada
    Replied: 7/1/2011
    Joanna Mitchell & Associates, P.A.
    Joanna Mitchell & Associates, P.A. | Joanna Mitchell
    If the gift was to you, then it is yours. If the gift was to both of you, then it is marital property subject to equitable distribution.
    Answer Applies to: Florida
    Replied: 7/1/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    This it not a community property state, but your operative words were "he gave it to us" I would say you both own the vehicle.
    Answer Applies to: Florida
    Replied: 7/1/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    It is a marital asset that will be allocated in the divorce.
    Answer Applies to: Connecticut
    Replied: 7/1/2011
    Goolsby Law Office
    Goolsby Law Office | Richard Goolsby
    I would recommend you retain a divorce attorney to discuss all your rights and options, including whether you might have an equitable claim to the gift. Good luck!
    Answer Applies to: Georgia
    Replied: 7/1/2011
    Law Office of Patricia Van Haren
    Law Office of Patricia Van Haren | Patricia Van Haren
    A wedding present would be considered community property unless it can be shown that your father intended the car to be a gift for you. However even if the car is community property, it would likely be awarded to you and offset against property which is awarded to your spouse.
    Answer Applies to: California
    Replied: 7/1/2011
    The Collaborative Law Group
    The Collaborative Law Group | Jac E. Knust
    If the car was given to husband and wife and titled in both names, it is marital property.
    Answer Applies to: Maryland
    Replied: 7/1/2011
    Law Office of James Lentz
    Law Office of James Lentz | James Lentz
    If gift was given during the term of the marriage, it is marital property unless you father was smart and kept title in his own name.
    Answer Applies to: Ohio
    Replied: 7/1/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    Georgia does NOT have community property. We are an equitable distribution state. The issue of who gets the car MUST be decided in the divorce. Details you did not give us affect the answer.
    Answer Applies to: Georgia
    Replied: 7/1/2011
    Beresford Booth PLLC
    Beresford Booth PLLC | S. Scott Burkhalter
    If it was given as a wedding present, I consider it to be community property.
    Answer Applies to: Washington
    Replied: 7/1/2011
    Meriwether & Tharp LLC
    Meriwether & Tharp LLC | Patrick Meriwether
    In Georgia, gifts given to both parties as a wedding present are generally considered marital gifts subject to equitable distribution.
    Answer Applies to: Georgia
    Replied: 7/1/2011
    Law Office Of Jody A. Miller
    Law Office Of Jody A. Miller | Jody A. Miller
    This is not necessarily a black and white question. If the car was given to both of you as a gift, then it is marital property. If the car was given only to you, then you could argue that it is your separate property, but that would be an argument you would have to prove factually - whose name is on the title, the testimony of the person who gave the "gift", whether there was a gift tax return, etc. You would have to decide if it's worth spending attorneys fees on.
    Answer Applies to: Georgia
    Replied: 7/1/2011
    Law Offices of Sheryl S. Graf
    Law Offices of Sheryl S. Graf | Sheryl S. Graf
    Under California law, assets and debts are separated into two categories: community property and separate property. Community property generally consists of all real and personal property acquired by the parties together during marriage. Separate Property is all property acquired by one of the spouses before marriage, or property obtained during the marriage which can be traced to some property acquired before marriage, or property acquired during the marriage as a result of a gift to one spouse, inheritance or personal injury claim. Turning to the specific facts of your question, the car was acquired during the marriage, so it is presumptively community property. Because the car was a gift to both of you, the separate property rules do not apply. Unfortunately, the fact that the gift was from your side of the family does not change the result. However, please note that upon divorce, all community property is divided equally. That doesn't mean that each community property asset or debt is split in half. It could mean that the person who takes on more of the debt may get more of the assets as compensation. Or, one spouse may be entitled to a payment so that the overall division of all assets and all debts is equal. Or, possibly an asset (in this case, the car) may have to be sold and the proceeds divided to make the division of property equal.
    Answer Applies to: California
    Replied: 7/1/2011
    Law Offices of John J. Ferry, Jr.
    Law Offices of John J. Ferry, Jr. | John J. Ferry, Jr.
    A gift to both parties is marital property. A gift to one spouse is that spouse's separate non-marital property.
    Answer Applies to: Pennsylvania
    Replied: 7/1/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    When you say: "us" in your question (as in your "dad gave it to us"), that sounds like your father intended the gift to be both you and your husband's property. If so, then it is community property. If community property, then any equity in such asset should be divided equally as part of a divorce, unless you and your spouse reach some other agreement.
    Answer Applies to: California
    Replied: 7/1/2011
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