Are Gifts Subject to Division in Divorce?

Are Gifts Subject to Division in Divorce?

Posted By R. Gregory Colvin LLC || 25-Sep-2019

If you are getting a divorce in Florida, you may be wondering if gifts are considered marital property or separate property, especially if one of you received a valuable gift during the marriage or you expect such a gift in the future.

In the United States, most states follow the “equitable distribution” method of dividing marital property, while a handful of states use the “community property model.” Florida is an equitable distribution state, which means all assets and debts acquired during the marriage belong equally to both spouses regardless of who earned the income or who acquired the debt.

For example, if one spouse were to open a credit card account in their name alone and they charged $10,000 on it, both spouses would be on the hook for the debt unless it can be proven that the spouse wasted (squandered) marital assets.

Are Gifts Separate Property?

As we mentioned earlier, “marital assets” are subject to division in a divorce, however, separate property is not usually divided unless it was commingled with marital assets.

Separate property includes:

  • Income, assets, and property acquired before the marriage
  • Gifts received by one spouse during the marriage
  • Inheritances received by one spouse during the marriage
  • Personal injury awards received by one spouse during the marriage

Gifts to one spouse alone during the marriage are considered separate property, but if the gift is converted into “joint” property or if it is comingled with marital assets, it can become a part of the marital estate.

For example, if “Mark” received a $5,000 gift from his brother after he won the Florida lottery and Mark put it into his joint checking account with his wife, Jessica, and the couple used the account to pay bills, the $5,000 would become marital property because it was commingled with marital assets.

What to Do If You Receive a Gift

If you receive a valuable gift during your marriage and divorce is on the horizon, our advice is not to mix it with marital assets. For instance, if your grandfather gives you his $20,000 motorcycle, don’t sell it and deposit the funds into a joint bank account or use the funds as a down payment on the marital residence. Instead, deposit it into a separate bank account with only your name on it and don’t let the money mix with any marital funds.

If you need divorce representation, contact our firm today!

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