Do I Have to Give Back the Gifts from My Spouse in a Divorce?

When couples go through a divorce, the first question many people ask is “Do I get to keep my ring?” This question is typically followed up with, “Do I get to keep gifts from my spouse?”

Marriage Property Vs. Separate Property

Divorce is a difficult and confusing time in a couple’s life, and those emotions are only compounded when property division comes into play. In Florida, there is “separate property” and then there is “marital property.” Separate property is property that belongs to one spouse and one spouse only. Separate property was either owned by one spouse before marriage, was acquired via the trade of separate property, or was received through a gift or inheritance. Separate property is not subject to equitable distribution.

Marital property is property that belongs to both spouses, and that was acquired during the time of marriage. Marital property is subject to equitable distribution. Gifts given between spouses during marriage are categorized by the Florida divorce courts as marital property. As such, they must be accounted for, valued, and divided as any other marital asset, unless it was expressly stated by the giving spouse that the gift is intended to be the sole and separate property of the recipient.

Unfortunately, when there is the exchange of gifts throughout a marriage, there is almost never any indication made about whether or not a gift is intended to be the sole and separate property of the receiving spouse. Because of this, gifts given to you by your spouse during marriage are no longer “yours”—they are the marriages, and will be treated as such.

The Exception

The only exception to this rule is when real estate is given as a gift. Typically, when an individual bequeaths a piece of property to another individual, they must have a deed created that transfers the property from the name of the bequeathing individual into the name of the recipient. This is no different when one spouse buys the other a piece of property. Typically, an inter-spousal deed transfer contains language that either implies or expressly states that the given piece of property is now the sole and separate property of the recipient.

However, again, because the piece of property was likely purchased with marital funds, there could still be some debate about whether or not the property is separate property, despite the deed.

Proving Separate Property

If you received a gift from your spouse that you would really like to keep, your best bet would be to just ask your spouse if you can each keep the respective gifts you gave to one another.

If, on the other hand, you really want to take back a gift you gave to your spouse, you can do the same: ask your spouse if you can each return the respective gifts given to one another.

If you and your spouse can come to an agreement, include a stipulation about marital gifts in your final divorce settlement.

However, if you and your spouse cannot agree to keep or return marital gifts, you may have to prove that the particular gift or gifts you want to keep is your separate property. In order to do this, you must produce evidence that shows:

• That the gift was given to you by the other spouse with the express intention that it was to be your sole and separate property; and
• That the gift was given during marriage, but it was exchanged for separate property by the recipient spouse, and there was no conflicting evidence suggesting that it be marital property.

Consult a Boca Raton Divorce Attorney

Division of assets during divorce can be extremely complex, especially when there are gifts involved. If you and your spouse simply cannot agree on what to do with gifts exchanged throughout your union, you may have to acquiesce each gift to the rules of Florida equitable distribution. At the Law Offices of Schwartz | White, we ensure that our clients walk away from the marriage with a fair settlement. If you are in the midst of divorce, contact our family law attorneys at 561-391-9943 or online to schedule a private consultation with one of our divorce attorneys today.

Resource:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.075.html