Dear Moneyist,
I received a gift from my mother several years ago. She transferred a significant amount to a bank account in my name alone. My husband persuaded me to put his name on the bill a few months later. The money was not touched for several years. No transactions have taken place.
Several years after this gift was made, my husband created the ghost of divorce. At that point I returned the balance to my mother in Europe. As we go through a divorce 5 years after the day I returned the money, my future ex-husband says he is entitled to half that money from my mother. We live in California. Is he correct?
Available soon
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Dear Soon,
Until a divorce court decides whether to let your own attorney give his / her opinion, I am not buying what your husband is trying to sell.
Under California law, gifts received during marriage from a third party that are specifically made to one spouse are NOT considered marital or community property. However, you deposited the money in a bank account under both of your names so that the money was technically mixed up and as such converted from a separate to a marital property. Since this money was in a joint account, you had every right to return the money to your mother.
The specter of divorce, of course, raises questions, and your husband could argue in divorce court that you were guilty of wasting (or squandering) marital assets before your split. A divorce court would not be friendly to such behavior and could take punitive action and order you to recover the money. But this should probably be done in a way that was meant to hurt the other husband. Given the origin of this money, this does not seem to be the case here.
There are more blatant examples of the wasting of marriage money: “An adulterous husband can pay for his girlfriend’s luxurious apartment of $ 5,000 a month”, according to the law firm Claery & Hammond. A vengeful wife can sell her husband’s $ 75,000 classic car on Craigslist for $ 1,000. A man can go to Las Vegas and blow $ 20,000 on gambling and strip clubs, or a woman can get a ‘Mommy Makeover’ days before filing for divorce. The possibilities are endless.”
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You have another factor in your favor: Your marriage survived another five years. There may have been happy times during that time, and some couples throw the “D word” when they pass through a rocky spot. According to Ben Carrasco, an attorney in Austin, Texas, “Spouses are discouraged from challenging transactions that took place long before the breakup of the marriage in an attempt to gain an advantage in the property division process.”
The burden of proof that a marital asset transfer could not be classified as wastage will likely rest on the party who transferred ownership, Carrasco says. But he says the timing of such a 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 major transfers were taking place pending divorce and divorce, “he writes. So it’s not as clear as your husband suggests.
Long story short – too late! – your husband appears to be using the same aggressive tactic that allowed him to add his name to your bank account.
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