The presents are unwrapped, and gifts exchanged. But that gift with your name on it, or that new vehicle in the driveway with a big bow on top, is it really yours?  Or, in the event of a divorce or legal separation, is it part of the marital estate subject to division?

Gifts that you and your spouse gave to one another may be treated as gifts if the intent that it was a gift is clear.  Such intent may be shown by the fact that the gift was given as a birthday, Christmas, or anniversary gift, or was titled in your name.

For gifts received from others during the marriage, such as a gift from a parent, the court will need to determine whether the gift was made to one party or to both. This is often a factual question, involving intent.  Intent can be shown by either words or acts. Is there a card to both of you, or were separate gifts provided to each?  The problem is that most people do not keep the cards and gift tags verifying gifts, which leads to people having to rely on the testimony of others.

Inheritances or bequests received during the marriage will be your separate property. With personal property, such as furniture or family heirlooms, this is fairly easy to distinguish.  Issues sometimes arise with respect to cash received if it has been commingled with community or marital funds.

The following tips help to increase the probability that expensive gifts and inherited funds will be easily traced and awarded to you as your separate property in the event of a divorce:

  • Keep liquid funds separate from the community/marital assets, such as in a separate account.
  • Make sure if title is involved, such as a vehicle, title is in your name alone.
  • Determine a clear way to identify the gift and the timing (such as a photo of the gift and card).
  • For jewelry and other insured gifts, keep the insurance in your name.
  • Try to avoid any claim that your spouse contributed to the care, operation, or improvement to the increase in the value of the value of the gift or inheritance.

The above are a few ways to insure that your Christmas gift this year does not become a joint asset next year.

About the Author:

Marlene Pontrelli is a Member in our Phoenix office and co-chair of the firm’s Family Law Practice. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.

Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.

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