ARTICLES

Gifts and Divorce

Property received as a gift is presumed to be non-marital. The presumption, however, may be overcome in court with appropriate evidence and testimony.¹ The easy cases are when someone from outside the marriage makes a gift to one spouse. Examples include gifts received by a spouse at a retirement party or from co-workers. Gifts from relatives, however, can be very difficult to decipher: was it a gift to the individual (non-marital) or a gift to the couple (marital). Think you know the answer? Think again – your spouse will almost certainly have a conflicting interpretation. Hire a lawyer who can effectively construct a case to protect your property and your interests.

Defining gifts is not always easy.² Weddings gifts, for example, are usually seen as being given to the couple – not to one spouse or the other – and are therefore usually considered marital property. On the other hand, some wedding gifts are given to one spouse only and some are given before the marriage – making them pre-marital (non-marital) property. Generally, wedding rings are considered gifts and are usually thought of as non-marital property.³ Exceptions exist, however, so if you used or received a family heirloom as a wedding ring, call our office.

Gifts from one spouse to the other can – but do not always – create non-marital property.⁴  Birthday gifts and anniversary presents are probably non-marital in nature. Married couples, occasionally use gift giving between themselves as a financial strategy. They sometimes will place property (especially real estate) in the name of one spouse to protect it from the other's creditors⁵ or as part of tax and retirement planning.⁶ Sometimes those transfers are seen by the court for what they are – other times the court views them as "gifts," and that means they become the non-marital property of the recipient. There are many cases in Illinois interpreting when a gift is really a gift and when it is really just smart planning or a tax dodge – call our office to work with a lawyer who knows the cases.

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