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Mark Abzug

How can non-marital property become a gift?

On Behalf of | Jun 24, 2021 | Property Division

Spouses considering divorce will face a number of difficult issues which need to be resolved. Property division can be among the most complex of these issues. Sometimes the spouses will agree on how assets should be divided, but oftentimes the nature of an asset and how it is treated can change over time, creating confusion about who should rightfully possess it.

How Florida law divides property

One of the first steps a court will take during a divorce is to identify all property owned by the couple as into marital or non-marital property. Any property owned solely by one spouse will be considered non-marital property and retained by that spouse. All property in which both spouses have an interest will be deemed marital property, subject to equitable distribution between the parties.

The line between marital and non-marital property can often be blurred, however, due the actions or inactions of either spouse. Property which was initially purchased entirely by one spouse, for their sole benefit, can morph into marital property depending upon how it is subsequently treated by both spouses.

Interspousal gifts can change the interest of property

Florida law provides that gifts from one spouse to another can be treated as marital property. A gift is not always something as straightforward as a birthday present given with a card. A gift can also be the transfer of an interest in property through words, actions or both.

For instance, one spouse could purchase a car prior to the marriage, having sole ownership when they enter into the marriage. The title could be in that spouse’s name alone and they could be the only one who makes payments on it. But once married, the other spouse could begin using the car themselves. They could insure themselves to drive it, use it to transport the couple’s children, put gas in the car from time to time and occasionally pay for the oil to be changed.

Florida’s rule regarding interspousal gifts permits the court to find that the spouse who owned the car had the ‘donative intent’ to transfer a portion of the interest in the car to the other spouse, thereby making it marital property.

Interspousal gifts depend heavily on the facts of a specific situation and can become very complex. When a spouse faces this difficult issue, they should seek advice from an experienced attorney to help resolve it.