If you are getting a divorce, your gift may not be entirely yours anymore.
Valentine's Day can be an awesome day of love and for many, a day to receive a big gift from your loved one. But get this—that gift that you love so dearly may cause you trouble when you are in the process of divorce. Consider this scenario:
Before you were married, your then boyfriend-turned-husband gave you that heart-shaped diamond necklace you've always wanted. You were ecstatic because you knew that the diamond necklace cost thousands of dollars, and he must really love you. Fast forward to years later and unfortunately you are in the process of divorce. Your husband might be mad at you and want his diamond necklace back. In fact, he wants half of the value of your necklace split as a marital asset. Is that necklace yours or does it belong to the marriage?
Actually, that necklace is all yours, because it was given to you before the marriage. Pretty interesting, right? Divorce Attorney and Huffington Post blogger Christian Denmon (Denmon and Denmon) offers some insightful information about gifts we receive from our loved one:
“A gift to your fiancé before marriage is a true gift in the traditional sense. Ownership has been passed to a sole individual and if they can prove that they are the primary user of this gift—such as a photo of said individual wearing jewelry often—the gift cannot be taken back. When one spouse gifts an item to another spouse before marriage the item becomes separate property and is not considered marital property, even if the parties subsequently marry and spend many years together as Husband and Wife."
However, let's say you loved that diamond necklace so much, that you decided to add more diamonds to it. Or perhaps you took out the smaller diamonds and replaced them with bigger bling. Does that necklace still belong to you? Nope—it's now considered marital property and the value of the necklace is now subject to a 50/50 split. Or how many of you got that "cute" diamond engagement ring when you were 23 years old, but upgraded by adding more or larger diamonds to it during your marriage? Yeah, that now belongs to him too.
Now consider this scenario:
You and your husband have split and he tries to woo you back with that expensive watch you've always wanted. You accept it, yet you still break up and now he wants his watch back—who does it belong to? Christian Denmon says it's all yours. "Jealousy or hurt emotions can trigger someone to give a gift," Denmon says, "but if the gift is given once you have separated, then it is not considered a marital asset."
Why didn't my divorce attorney tell me this? If you are currently undergoing a divorce, make sure you ask your attorney about gifts and/or upgrades to gifts you have received. Gift-giving can be quite tricky and cause headache or heartache, depending on where you are in your break-up.
Do you have legal questions about your gifts? Comment below, and I will ask my trust-worthy attorney, Christian, for more information!
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