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Division of marital property: interspousal gifts and the issue of donative intent

One of the points we’ve previously mentioned on this blog is that it is important for couples, when dividing assets, to determine what property is separate and what property is part of the marital estate. Again, marital assets include those acquired during the marriage by either spouse, any increase in value and appreciation of separate property resulting from the efforts or contributions of either part during the marriage, and any value tied up in retirement, plans, insurance plans, and other benefit and funds.

Also included within the marital estate are interspousal gifts made during the marriage. By contrast, assets acquired by either party separately by noninterspousal gift, or by inheritance, are considered to be separate. When it comes to interspousal gifts, one of the issues that can come up is whether the spouse had the intention of giving property as a gift. This is known as “donative intent.”

In determining whether a spouse had the intention to give property as a gift to the other spouse, there are different standards used, and the courts aren’t always in agreement on the issue. The issue came up, for example, in a divorce case involving a dispute over the distribution of two properties held solely by the husband. Although the couple had a prenuptial agreement stating that premarital properties would be retained the individual, the wife argued that the husband had donative intent with respect to the two properties and that those properties should, therefore, be equally distributed in divorce.

The trial court decided in the case that the husband did have donative intent with respect to the two properties. In our next post, we’ll look at how that decision was made, the evidence requirements with respect to donative intent, and the importance of working with an experienced family law attorney in property division disputes.

Source: 2016 Florida Statutes, Section 61.075, Accessed May 15, 2017. 

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