How Are Gifts Handled During the Property Division Process in Divorce?

 Posted on January 19, 2021 in Division of Property

When you and your spouse reach the point where you are ready to begin allocating property among yourselves, one of the first things you will have to do is determine what is and is not subject to division during your divorce. When a couple goes through a divorce in the state of Illinois, their assets are divided into two categories: marital and non-marital property. Marital property is the only type of property subject to division and consists of any property you or your spouse acquire during the marriage, with a few exceptions. One such exception is for gifts, which can be considered both marital and non-marital property, depending on the circumstances of the situation.

Gifts as Marital Property

Most of the time, the items that you receive as gifts during your marriage will be considered non-marital property. However, there may be circumstances in which your spouse will argue that the gift should be considered marital property and therefore subject to division with your other assets. Here are a few common examples of how gifts can be considered marital property during your divorce:

• The gift was given to both of you. If a gift was given to just you or your spouse specifically, it is typically considered non-marital property. However, if a gift was given with the intention of it being for both you and your spouse, it may be considered marital property. A common example of this would be wedding presents.

• The gift was given as a loan. In Illinois, a gift is defined as an asset that is given to you with no expectation of anything being given in return. If a gift is given to you with the expectation that you will repay that gift at some point, then the money is usually considered a marital debt instead and would be subject to division.

• The gift was a form of compensation. Similarly, gifts are not considered gifts if they are given as a reward for something or in anticipation for something you are to do in the future. Technically, this would be considered compensation and not a gift and could be subject to division.

• The gift became commingled with other marital assets. When it comes to any type of gift or asset, the way you treat or handle it can affect the way it is handled during your divorce. For example, if you were gifted with an inheritance from a family member and put it into a separate bank account in your name only, the court would likely consider that as non-marital property. However, if you took that inheritance and deposited it into your joint bank account that your spouse had access to and that already contains marital funds, the court would likely consider the commingled property to be marital property.

Contact Our Kane County Divorce Attorney Today

For many people, the financial side of divorce is extremely important and will affect their financial future for years to come. Getting an accurate appraisal of what is and is not the marital property is important to allow for an equitable distribution of your marital property. At the Law Office of Matthew M. Williams, P.C., we know how important it is to fight for your rights during the asset division process. Our knowledgeable Geneva divorce lawyer is dedicated to helping you negotiate a settlement that is agreeable for everyone. To discuss your case with our attorney and schedule a consultation, call our office today at 630-409-8184.

Source:

https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm