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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.

Joseph E. Cordell, founder of Cordell & Cordell family law offices

Written by Joseph E. Cordell

Co-Founder, Principal Partner
Joseph E. Cordell, founder of Cordell & Cordell family law offices

Joseph E. Cordell is the Principal Partner at Cordell and Cordell, P.C., which he founded in 1990 with his wife, Yvonne. Over the past 25 years, the firm has grown to include more than 100 offices in 30 states, as well as internationally in the United Kingdom. Mr. Cordell is licensed to practice in the states of Illinois and Missouri and received his LL.M. from Washington University in St. Louis, Missouri. Joseph E. Cordell was named one of the Top 10 Best Family Law Attorneys for Client Satisfaction in Missouri.

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