Dear Moneyist,
I received a gift from my mother several years ago. She transferred a substantial amount of money to a bank account in my name alone. My husband convinced me to add his name to the account several months later. The money has not been touched for several years. No transactions were made.
Several years after this gift was made, my husband raised the specter of divorce. At that time, I returned the balance to my mother in Europe. Now that we are getting divorced 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?
Soon it will be free
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Dear soon,
Until a divorce court decides that or you have your own lawyer giving your opinion, I am not buying what your husband is trying to sell.
Under California law, gifts received during a third party’s wedding made specifically for one of the spouses are NOT considered marital or community property. However, you deposited the money in a bank account under both names, so the money was technically merged and, as such, transformed from separate property into marital property. Since it was money in a joint account, you had every right to send the money back to your mother.
The divorce specter raises questions, of course, and your husband could argue in the divorce court that you were guilty of dissipating (or squandering) marital assets before your separation. A divorce court would not welcome such behavior and could take punitive measures and order you to return the funds. But this would probably have to be done in a way that would harm the other spouse. Given the source of this money, it does not seem to be the case here.
There are more notorious examples of wasted matrimonial money: “A cheating husband can pay for his girlfriend’s luxury apartment of $ 5,000 a month,” according to the Claery & Hammond law firm. “A vengeful wife can sell her husband’s $ 75,000 classic car for $ 1,000 on Craigslist. A husband can go to Las Vegas and spend $ 20,000 on gambling and strip clubs, or a wife can do a ‘mommy makeover’ days before asking for a 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 moments during this period, and some couples throw the “D word” when they are going through a rocky phase. According to Ben Carrasco, a lawyer in Austin, Texas: “Spouses are discouraged from challenging transactions that took place well before the end of the marriage in an effort to gain an advantage during the property division process.”
The burden of proving that a transfer of marital assets was not considered a waste is likely to fall on the party who transferred the property, says Carrasco. But he says the timing of any transfer is also critical: “Courts will focus on the couple’s marriage, when it became clear that the marriage was at risk and that any major transfers were being made in anticipation of the separation and divorce” he So it’s not as clear as your husband suggests.
Long story short – too late! – Her husband appears to be using the same aggressive tactic that allowed her to add his name to her bank account.
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