How to Prove Your Asset is a Gift During a New Jersey Divorce
Gifts often play an important role in New Jersey divorces. Because gifts are considered separate property, they are not subject to equitable distribution. This means that spouses who receive assets in the form of gifts can hold onto this property despite having received it during the marriage. Normally, all assets accumulated during the marriage are subject to equitable distribution.
With this in mind, it should come as no surprise that many divorcing spouses claim to have received certain assets as gifts during their marriage. Other spouses may fight against these claims because they want access to these assets. But how do you determine whether or not an asset was actually a gift?
The Legal Definition of a Gift
A gift is a clear, voluntary transfer of property between two people. In a legal context, only property can be classified as a gift – not services. In addition, a gift must be given without any expectation of compensation.
The Burden of Proof
If a spouse claims that an asset is separate property during a divorce, the burden of proof falls on them. This means that they must show without a shadow of a doubt that this piece of property was either inherited, owned before the marriage took place, or received as a gift. If a spouse claims that an asset was given to them as a gift, they must prove it.
Elements of Proof
There are several elements of proof associated with gifts. These are the things you must prove if you want to show the court that your gift should be considered as such.
- Legal Capacity: The donor (the person giving the gift) must be at least 18, and of sound body and mind
- Intent: The donor must transfer the property with the intention of giving a gift
- Delivery: The gift must have been delivered by the donor to the donee (the person receiving the gift). This can be actual or symbolic, for example writing a card with the gift or physically handing over the gift.
- Acceptance: The donee must affirmatively accept the gift without being coerced
Presumption of Advancement
While the burden of proof lies on spouses who claim they have received certain assets in the form of gifts, there is also something called the “presumption of advancement” to consider. In basic terms, the presumption of advancement means that if property is transferred from one spouse to another during the marriage, the court will generally consider this to be a gift. The only exception is if the donor can prove that this transfer was not intended as a gift at the time.
Enlist the Help of a Qualified Attorney Today
If you need help dealing with separate property, gifts, inheritance, and similar issues during a New Jersey divorce, it is best to work with a qualified attorney. Reach out to Giro, LLP, Attorneys at Law, and you can approach this situation in an effective manner. We have considerable experience with divorces over the years, and we can provide you with meaningful assistance. Book your consultation today.