When couples divorce in Virginia, their property is classified as either separate or marital. This distinction can play an important role in determining what each spouse is entitled to, especially when a divorce process is not wholly amicable.
Ultimately, gifts can fall into either category of property, depending on various factors such as who gave the gift, when it was received and how it was used during the marriage.
Separate property vs. marital property
Virginia follows the equitable distribution model, which means that marital property is divided fairly, though not necessarily equally, in the event that property-related disagreements need to be resolved by a judge. Separate property belongs solely to one spouse and is generally not subject to division. Marital property, on the other hand, generally has been acquired during the marriage and typically belongs to both spouses.
Gifts can be considered separate property if:
- They were given to only one spouse by a third party (such as a parent or friend).
- They were received before the marriage.
- They were specifically intended as an individual gift rather than for the couple.
For example, if a husband’s parents give him a car in his name only, it is likely to be considered his separate property.
However, gifts can become marital property if they are commingled—meaning they were used by both spouses in a way that changes their original classification. If a spouse receives a financial gift but deposits it into a joint bank account and both spouses use the money, it may be considered marital property.
In most cases, gifts exchanged between spouses during their marriage are considered marital property, unless there is a prenuptial or postnuptial agreement stating otherwise. For instance, if one spouse gives the other an expensive watch or jewelry, that item is generally subject to division in a divorce. However, courts may consider factors such as intent and exclusivity of use when making a final determination.
If you want to ensure that a gift remains separate property, keeping it in your name, maintaining clear documentation of its origin and avoiding commingling with marital assets can help you to achieve that goal in the event of divorce.
