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Dear Moneyist,
I received a gift from my mother several years ago. She transferred a substantial amount of money into a bank account under my name only. My husband persuaded me to add his name to the account several months later. The money was not touched for several years. No transactions were made.
Several years after this gift was made, my husband raised the spectre of divorce. At that time, I returned the balance to my mother in Europe. Now that we are going through a divorce 5 years after the day I returned the money, my soon-to-be ex-husband says he has a right to half of that money from my mother. We live in California. Is he correct?
Soon to be Free
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Dear Soon,
Until a divorce court rules on this or you have your own attorney give his/her opinion, I’m not buying what your husband is trying to sell.
Under California law, gifts received during marriage from a third party made specifically to one spouse are NOT considered marital or community property. However, you deposited the money in a bank account under both your names so the money was technically co-mingled and, as such, transformed from separate to marital property. Given that this was money in a joint account, you had every right to send the money back to your mother.
The spectre of divorce raises questions, of course, and your husband could argue in divorce court that you were guilty of the dissipation (or squandering) of marital assets ahead of your split. A divorce court would not look kindly on such behavior and could take punitive action, and order you to restore the funds. But this would likely have to be done in a way that was intended to injure the other spouse. Given the provenance of this money, that does not seem to be the case here.
There are more egregious examples of wasting marital funds: “A cheating husband can pay for his girlfriend’s $5,000-a-month luxury apartment,” according to the law firm Claery & Hammond. “A vengeful wife can sell her husband’s $75,000 classic car for $1,000 on Craigslist. A husband can head to Las Vegas and blow $20,000 on gambling and strip clubs, or a wife can get a ‘Mommy Makeover’ days before filing for divorce. The possibilities are endless.”
You have another factor in your favor: Your marriage survived an additional five years. There may have been happy times during that period, and some couples do throw the “D-word” when they’re going through a rocky patch. According to Ben Carrasco, a lawyer in Austin, Texas: “Spouses are discouraged from challenging transactions that took place well before the marriage’s breakdown in an effort to gain an advantage during the property division process.”
The burden of proving that a transfer of marital assets did not qualify as waste will likely fall on the party who transferred the property, Carrasco says. But he says the timing of any such transfer is also critical: “The courts will focus on the time in the couple’s marriage when it became clear that the marriage was in jeopardy and that any major transfers were being made in anticipation of separation and divorce,” he writes. So it’s not quite as clear cut as your husband suggests.
To cut a long story short — too late! — your husband appears to be using the same aggressive tactic that enabled him to add his name to your bank account.
The Moneyist: I earned $100,000 in 2019, but far less in 2020. Why did I not get a stimulus check? How is that fair?
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