How Will Gifts be Treated during a Divorce?

 Posted on April 17, 2015 in Divorce

During a dissolution of marriage in Illinois, a court will approve a settlement agreement that provides for an equitable distribution of assets. Usually, this means that any marital assets or property owned jointly by the spouses must be divided equally. Non-marital assets, or property that belongs solely to one spouse, will remain the property of that spouse and generally will not affect the way the marital property is divided. Exceptions can be made when an equal division of marital assets would be extremely unfair to one spouse, for example, when the other spouse has a disproportionately larger amount of assets.

Marital vs. Non-Marital

When classifying assets as either marital or non-marital, one of the clearer rules under Illinois law is that gifts to one spouse are presumed to be non-marital property. This presumption provides only a default starting position, however. It can be rebutted or shown to be otherwise with evidence and testimony in court.

Some of the most cut-and-dry classifications of particular assets as gifts occur when someone besides a recipient’s spouse gives a present to the recipient. This can include birthday presents, retirement presents, and other such gifts. When a present is coming from a relative, it is often more complicated to determine whether the gift was intended for one individual spouse or for both members of the couple.

Wedding gifts would usually be seen as marital property, because they are generally given to the couple as a unit. However, exceptions exist, such as when a wedding gift is clearly designated for one spouse, or if it was given before the marriage. A wedding ring is also generally considered non-marital property, belonging to the spouse who received it.

Gifts received by one spouse from the other are also generally considered non-marital property. Sometimes, couples use gift-giving as a financial mechanism to protect property that they may both control and keep from the creditors of one spouse. Occasionally, a court would view such transfers as a gift, and the property would be considered non-marital as a result. But often, they will see the true financial protective purpose and decline to classify the asset as a gift, making it fair game for equitable distribution of marital property during a divorce.

Reach Out to a DuPage County Divorce Attorney Today

Often, even if a gift given to you seems to be clearly just that, your spouse and their lawyer will likely have a very different interpretation. The knowledgeable divorce lawyers at Davi Law Group, LLC can help you articulate why a particular asset should or should not be considered a gift for purposes of classifying it as divisible marital property. Contact our skilled DuPage County divorce attorneys at 630-657-5052 for a free consultation on the division of property during your marriage dissolution case.