Dear Moneyist,
I received a gift from my mother several years ago. She transferred a significant amount of money into a bank account under my name. My husband persuaded me to add his name to the account a few months later. The money was not touched for several years. No transactions were made.
A few years after this gift was made, my husband filed for divorce. At the time, I was returning the balance to my mother in Europe. Now that we’re going to divorce five years after the day I returned the money, my ex-husband says he’s entitled to half of my mother’s money. We live in California. Is he correct?
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Best soon,
Until a divorce court rules on this, or you give a lawyer his / her opinion, I will not buy what your husband is trying to sell.
Under California law, gifts received during a third-party marriage, specifically given to one spouse, are NOT considered marital or communal property. However, you deposited the money in your bank account under both your names, so that the money was technically merged and as such changed from separate property to marriage. Since it was money in a joint account, you had the right to return the money to your mother.
The separation of the divorce naturally raises questions and your husband can argue in the divorce court that you were guilty of distributing (or wasting) marital assets before your separation. A divorce court will not look after this behavior as well and may take up punishment and order you to recover the funds. But it will probably have to be done in a way that was meant to hurt the other spouse. Given the origin of this money, it does not appear to be here.
There are more serious examples of wastage of marriage funds: ‘A fraudulent man can pay for his girlfriend’s luxury apartment of $ 5,000 a month,’ according to law firm Claery & Hammond. ” A vengeful woman can sell her husband’s $ 75,000 classic car for $ 1,000 on Craigslist. A man can go to Las Vegas and blow $ 20,000 at gambling and strip clubs, or a woman can get a ‘Mama Makeover’ before filing for divorce. The possibilities are endless. ”
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You have another factor in your favor: your marriage has survived for another five years. There may have been happy times during the period, and some couples throw the ‘D-word’ as they go through a rocky spot. According to Ben Carrasco, an attorney in Austin, Texas: “Spouses are discouraged from challenging transactions that took place well before the breakup of the marriage, in an effort to take advantage during the process of property division.”
The burden of proof that the transfer of marital assets does not qualify as waste is likely to fall on the party who transferred the property, Carrasco said. However, he says the timing of such a transfer is also critical: ‘The courts will concentrate on the time in the couple’s marriage when it became clear that the marriage was in jeopardy and that any major transfers had been made. in anticipation of divorce and divorce, “he writes. So it’s not quite as clear as your husband suggests.
To cut a long story short – too late! – your husband seems to be using the same aggressive tactics that enabled him to add his name to your bank account.
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