The Separation of Marital Assets in a Divorce: What is "a Gift?"

One of the most hotly contested issues in a divorce is the separation of marital assets. Indeed, couples have been known to spend thousands in attorneys fees fighting over what others may view as the most menial of things. As such, a vast area of law has developed to cover the separation of marital assets in a divorce, generally centering around what is "marital property" to be divided equitably after a divorce, and what is "separate property" to be kept by the party of ownership.

As one might expect, a "gift" by one spouse to another is considered separate property. But, legally speaking, what is a gift? While the laws of each state vary, for the purposes of this article we will explore law in the state of Georgia. In Georgia, a gift must meet three criteria: (1) the person giving the gift must have intended to make the gift, (2) the person who received the gift must have accepted the gift, and (3) there must have been a delivery of the gift from the donor to the done. The individual who claims to have received the gift must prove all three elements exist.

When it comes to issues of intent, the facts are not always clear, and it is the responsibility of a trier of fact (either a judge or jury) to determine the intent of the parties. In the case of Baker v Baker (2006), the Georgia Supreme Court determined that circumstantial evidence is admissible in Georgia trial courts with respect to issues concerning whether or not something was given as a gift.

Distinguishing between what is a gift and what is a loan can be particularly tricky. With respect to children in a divorce, for instance, the delivery of property by a parent to a child for the exclusive possession of the child (if they live separate from the parent) creates a rebuttable presumption of a gift. The presumption can be challenged, however, if the parent can show an actual contract of lending.

All in all, as one might expect, family law matters can get messy, and distinguishing within a family relationship what was given to whom as a gift, a loan, a contract or something else can get rather tricky and, more often than not, highly contentious.

Georgia Divorce Lawyers
Divorce Attorneys in Atlanta, Georgia