A gift during marriage from one spouse to the other probably makes the recipient feel like the gift is their own property. It may surprise you to learn that in Florida statute, interspousal gifts during marriage are marital property subject to equitable property division in divorce.
This rule can result in disputes about whether the giving spouse really meant the gesture to be a gift.
HOW IS PROPERTY DIVIDED IN DIVORCE?
First, the parties to a divorce can negotiate or mediate a marital settlement agreement in which they can decide how to distribute property between them. If there is a dispute whether an asset was a gift between them, they can negotiate a way to settle this issue. In addition, the issue may be determined by the terms of a valid prenuptial or postmarital agreement between the parties.
If the spouses did not settle the question by agreement, the judge in the divorce will decide as part of the equitable division of their property. The judge will first determine what property is separate, nonmarital or premarital (owned by one spouse alone because that spouse either acquired the asset before marriage or during marriage by inheritance or gift from someone other than the other spouse). Each spouse gets to keep their separate, nonmarital property.
After the court identifies the nonmarital property, Florida law says that the marital property remaining should be equitably (fairly) divided. Marital property is that earned or acquired by either party during the marriage either jointly or separately, including gifts to them jointly from a third party and interspousal gifts. The statute says that the court should presume that “distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors …”
FLORIDA SUPREME COURT HAS DEFINED AN INTERSPOUSAL GIFT
In 2017, the state Supreme Court said in Hooker v. Hooker that the judge must have “competent, substantial evidence” for its findings on which it bases a property division decision involving an alleged interspousal gift. There are three elements that prove an interspousal gift:
• Donative intent
• Delivery or possession
• Giving up “dominion and control”
The issue in Hooker concerned whether two properties were part of the marital estate: the main Florida residence of the parties, which was a horse farm called Hickstead, and a summer residence in New York called Lake George.
Although the properties were titled in the husband’s name and paid for mainly from his nonmarital money, donative intent and relinquishment of possession and control were evident in the husband’s overall behavior. The wife treated both properties as if she were a joint owner by making decisions about the development, maintenance, decoration and use of the properties independently of the husband such that substantial and competent evidence of an interspousal gift existed, making both properties part of the marital estate subject to equitable distribution.