Divorcing couples sometimes end up battling over things they didn’t realize they even cared about until it came time to decide who got to keep them. Among these are gifts they acquired throughout the marriage.
When deciding who keeps an item that was a gift, the first thing to determine is whether it is marital property or the separate property of one spouse. That’s not always a clear-cut question.
Gifts given to one spouse
Typically, gifts that were intended for one spouse (for example, birthday, Mother’s Day or Father’s Day presents or gifts from close friends or family) are considered that person’s alone, and they can keep them in the divorce. If the other spouse really wants an item, they would need to give their soon-to-be ex assets of equivalent value.
What if an individual gift becomes commingled?
Some gifts intended for one person become commingled and could be considered marital property in a divorce. This can happen with highly valuable gifts that require money to maintain.
For example, say that one spouse’s parent gave them a car when they graduated from medical school or had some other big accomplishment – or just because they no longer needed it. If the other spouse contributed money and time to the care and maintenance of that car and the insurance premiums were paid from a joint bank account, that spouse could make a claim that the car has become marital property and should be treated as such in property division.
What about spouses’ gifts to one another?
It’s often assumed that gifts that spouses exchanged with each other are considered the separate property of the recipient spouse. In many places, that’s true. However, Virginia law states, “Separate property is…all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party.” (italics added) That means a spouse can potentially ask for all of their gifts back or the equivalent value of them, in divorce.
Besides determining who gets commingled gifts and those exchanged during the marriage, divorcing couples also need to determine how gifts they received as a couple from others for their wedding, holidays, housewarmings, anniversaries and other occasions are divided.
It’s important to be smart about these decisions and not let them be driven by anger, revenge or other emotions. Having sound legal guidance can help people make the best decisions for their future.
