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Can my spouse take back a gift during our divorce?

On Behalf of | Feb 8, 2022 | High Net-worth Divorce

Over the course of your marriage, you and your spouse likely gifted each other many different items for birthdays, holidays and special occasions. When it is time to divide your assets during a divorce, you may want to keep a gift from your former partner, particularly if it has sentimental or monetary value.

New York’s property division laws will determine what rights you have regarding gifts from your spouse.

Understanding marital vs separate property

In New York, courts divide marital property equitably, though not necessarily equally, among the divorcing couple. Marital property includes most assets obtained after your nuptials. Separate property, on the other hand, refers to items you owned prior to the marriage. In addition, there are some other notable exceptions to marital assets, including:

  • Inheritances or gifts from someone other than your spouse
  • Some types of compensation from personal injuries
  • Money or assets you receive from the sale or exchange of separate property
  • An increase in the value of separate property, unless the increase is attributable to your spouse

A gift from your wife or husband is not separate property and is subject to the same division process as other marital assets.

Keeping a gift

While you and your spouse can always sell the gifted item and divide the proceeds, you may want to keep the gift. If so, you will need to obtain a valuation of the object and offer to compensate your spouse for his or her fair portion.

The division of high-value gifts can cause a lot of contention in a divorce. A strong legal strategy may be necessary to ensure you can keep a meaningful item.

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