In a Florida divorce all of the assets at the time of the divorce can be classified as either marital or non-marital for the purposes of dividing those assets.

Marital assets are strictly defined in the Florida statute  “Marital assets and liabilities include: assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.” Fla. Stat. Sec 61.075(6)(a1).  Which basically means anything received during the marriage becomes marital property.

The statute goes on to specifically include as a marital asset “Interspousal gifts during the marriage.” Fla. Stat. Sec. 61.075(6)(a1)(d)

So, if the statute is saying “everything acquired during the marriage is a marital asset and then specifies that gifts between spouses are marital assets” then there must be some kind of gift exception that necessitated that clarification.

The statute then proceeds to list all of the possible non-marital assets which include a section regarding gifts. “Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;” Fla. Stat. Sec 61.075(6)(b)(2)

So, what exactly are all of these noninterspousal gifts, bequests, devises, or descents?

While Florida doesn’t define a gift specifically for the purposes of divorce, a valid gift is “[t]he voluntary transfer of property to another made without compensation.” Black’s Law Dictionary (8th Ed. 2004) 709.

“[T]hree elements must be shown to support a finding of intent to make a gift: (1) donative intent, (2) delivery or possession of the gift, and (3) surrender of dominion and control of the gift” Mills v. Mills, 845 So. 2d 230 – Fla: Dist. Court of Appeals, 3rd Dist. 2003

Understanding these elements is important because declaring an asset a gift makes the asset non-marital.  Likewise, declaring an asset an interspousal gift makes the asset marital.

It is easier to conceive of what is a gift that renders an asset marital or non-marital by working through the various common gifts.

  • Engagement rings are gifts. An engagement ring is considered a premarital gift and the ring shall remain with the receiver upon the dissolution of the marriage.  Greenberg v. Greenberg, 698 S.2d 938 (Fla. App. 1997))
  • Wedding rings are treated the same as engagement rings. They are premarital gifts to each other.
  • Wedding presents are gifts to the couple and therefore marital assets. Even if one spouse didn’t even know the wedding present giver, the wedding present will be presumed to be a gift to the couple not one individual party.
  • Loans are not gifts. If you’re paying someone back for a gift, it’s not a gift, it’s a loan and therefore marital property.  Patel v. Patel, 162 So. 3d 165 – Fla: Dist. Court of Appeals, 5th Dist. 2015
  • Anything from a parent is not presumed a gift to that parent’s child alone. Even in an obvious gift circumstance, “the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.” Fla. Stat. Sec. 61.075(3)
  • All inheritances bequeathed to just one member of the marriage are gifts and are non-marital property.
  • Gifts between spouses become marital property. What’s the difference between, “I bought my husband a car” and “we bought a car for my husband to use?” There is no difference! In both situations the property is marital.
  • Gifts between spouses that were made for tax purposes are still gifts. It’s common for estate planning purposes to give your spouse (especially if the spouse is younger) $ 15,000 a year.  So, non-marital money that is gifted to a spouse just to save on the gift giver’s estate taxes becomes marital money in Florida.  So, half the value can be retrieved from any gift in a Florida divorce.
  • Gifts that you work for are not gifts but rather earned income. Mills v. Mills, 845 So. 2d 230 – Fla: Dist. Court of Appeals, 3rd Dist. 2003
  • Putting property in your spouse’s name is not automatically an interspousal gift. But if the property is held by tenancy in the entirety, the property becomes marital gift or not. “All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.” Fla. Stat. Sec. 61.075(5)(a)5.

An asset that’s established as a noninterspousal gift can still become a marital asset if the asset is subsequently comingled with marital property. “Money loses its nonmarital character when it is commingled with marital money and becomes untraceable” Belmont v. Belmont, 761 So. 2d 406 – Fla: Dist. Court of Appeals, 2nd Dist. 2000

Gifts a spouse received can be used to inform the court of that spouse’s assets so as to offset any alimony they might be entitled to.  However, the court is not allowed to consider future gifts such as inheritance when calculating alimony. “A court may consider income from a gift which has already been received, but the fact that one has been relying on family largess should not be factored into one’s income for purposes of determining the need for support.” Shiveley v. Shiveley, 635 So. 2d 1021 – Fla: Dist. Court of Appeals, 1st Dist. 1994.

If you’ve received gifts from your spouse or a third party and want to learn more about what will happen to those gifts in a divorce contact my Naples, Florida law office to speak with an experienced divorce lawyer.