Are Gifts Between Spouses Subject To Division In A Georgia Divorce?

Throughout a marriage, couples will often provide gifts to one another. Sometimes these gifts may be of substantial value, such as jewelry and electronics.

When a couple divorces, it is not uncommon for a spouse to contend that a particular item received as a gift from their spouse is his or her separate property, and should therefore not be included in the division of marital assets.

This common presumption is legally incorrect under current Georgia case law.

In Georgia, if a spouse receives a gift from a third party (someone other than their spouse), and the gift was specifically intended for that spouse (the gift cannot have been intended to the marital couple), then that property shall remain the separate property of the party that acquired it, and that property is not subject to equitable division in the divorce. McArthur v. McArthur, 256 Ga. 762 at 763 (1987), citing Bailey v. Bailey, 250 Ga. 15 (1982).

This is not always the case, however, with respect to inter-spousal gifts. In Georgia, if the property is acquired by one spouse as the result of an inter-spousal gift of marital property, the property retains its status as marital property. Avera v. Avera, 268 Ga. 4, (1997), citing McArthur v. McArthur, 256 Ga. 762, 763 (1987).

Generally, this means that if a gift was purchased with marital funds, then the particular gift remains a marital asset subject to equitable division in the divorce proceeding. If the gift is particular to one of the spouses (for example, an item of jewelry given as a birthday gift), then that spouse will likely retain that asset.

However, the value of that gift will probably be taken into consideration upon a division of the marital estate.