Wife can’t keep her gifts and take share of husband’s
QMy wife and I both have generous families. We each received cash gifts during our marriage, which were initially deposited into our joint account. Then money gifted to my wife was put into her separate account; and ditto for money that was given to me. I often used the gifts from my family to pay for fabulous school recess and summer vacations.
My wife refused to spend her gifted money, saying she was saving it to help provide for our early retirement. Now we are getting divorced. I was ordered to move out of the house and pay all the family bills. So I’m using my gifted money to pay those expenses, plus rent and furnish an apartment. My wife is putting her income into her individual account.
She is demanding that I give her half of my assets and she wants to keep all her money because she never paid family bills with it. Is that a probable outcome?
AA Massachusetts judge can order one spouse to pay money from his or her gifted property to the other spouse. That’s because that money is part of the marital assets.
Your wife believes, because you used your money to support the family, that your money was woven into the fabric of your marriage while her money was not. If those were the only factors, she might be right about what a judge would order.
Fortunately for you, she ignores two facts that destroy her concept of reality. First, by depositing those gifts into a joint account, you each commingled ownership, meaning you each presumptively owned half. That presumption doesn’t change just because you each moved the commingled money into separate accounts. Second, a judge will probably require her to use her income to help support herself and your children rather than bank it and pretend it doesn’t count.
Your wife’s demands demonstrate she wants to eat her cake and have it too. But her concept has no place in Massachusetts divorce law. Judges must make a fair division of all marital assets. It’s best not to argue this directly with your wife. Instead, consider asking your lawyer to suggest to your wife’s lawyer that he or she give your wife a copy of Massachusetts General Laws chapter 208, Section 34. There she’ll read the factors judges must use and additional factors judges may use in deciding a division of assets. Some factors are the length of the marriage, contributions by each party to the marital estate, the needs of each party, when gifts were received, how gifts were used or saved, and the opportunity for each party to acquire future capital assets.
There is nothing in Section 34 that permits a miserly spouse to keep what they squirreled away.
Piece of cake.
Wendy O. Hickey has since 1994 been involved in and since 2003 been a trial lawyer who concentrates her practice on national and international family law. Any legal advice in this column is general in nature, and does not establish a lawyer-client relationship. Send questions to dearwendy@bostonherald.com.