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Are Cash Gifts From Your Family Marital Property?


Some divorce cases are more expensive than others, but even in the simplest cases, it will take you at least a few hundred dollars to go from being legally married to being legally single.  If you have depended on your spouse financially throughout the marriage, then you can work out the payment of attorneys’ fees during mediation or, if necessary, at trial; the court sometimes orders the wealthier spouse to pay the attorneys’ fees of both parties.  Spouses who are planning to file for divorce often take steps toward separating their finances, such as by opening separate bank accounts.  Sometimes they do it without the other spouse’s knowledge.  If you have completely merged your finances with those of your spouse, you are not the first person to ask your parents for money to open a bank account to enable you to file for divorce.  Cash gifts from your parents, especially if you received them years before you filed for divorce do not legally count as a vote of no confidence in your marriage; unless it has a reason to do otherwise, the court categorizes them as marital property.  A Boca Raton divorce lawyer can help you if you and your spouse are at odds over the equitable distribution of cash gifts you received during your marriage.

The Annual Gift Tax Exclusion Makes Your Parents’ Estate Plan Simpler, but It Can Make Your Divorce More Complicated

Federal tax laws give you the right to give cash gifts each year, up to a certain value, without paying gift taxes.  In 2024, the annual gift tax exclusion amount is $18,000 per recipient.  This means that, over the course of a long marriage, if your parents give you the maximum tax-free gift each year instead of stocking stuffers, you might end up with hundreds of thousands of dollars in cash gifts from family members.

All property acquired during the marriage is marital property, except for the following types of property or circumstances of its acquisition:

  • Assets labeled as non-marital pursuant to a prenuptial or postnuptial agreement
  • Settlements or damages awards arising from personal injury or workers’ compensation claims
  • Assets that one of the spouses inherits from a family member

From an estate planning perspective, giving cash gifts to your children while you are alive is very similar to leaving assets to them in your will or a testamentary trust.  In divorce cases, it makes all the difference.  The court will consider the cash gifts from your parents’ marital property, even if you deposited them in a bank account that only has your name on it.  Therefore, unless you sign a prenup or persuade your ex during mediation to let you keep all the gift money for yourself, you will have to share it with your ex.

Contact Schwartz | White About Keeping or Sharing Your Cash Gifts in Divorce

A South Florida family law attorney can help you if cash gifts from your family constitute a substantial part of your marital property.  Contact Schwartz | White in Boca Raton, Florida about your case.



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