Dear Moneyist,
A few years ago I received a gift from my mother. He transferred a significant amount of money to a bank account just under my name. My husband convinced 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 increased the specter of divorce. At that time, I returned the balance to my mother in Europe. Now that we are in a divorce five years after the day I returned the money, my next husband soon says he is entitled to half of that money from my mother. We live in California. Are you right?
He will be free soon
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Dear soon,
Until a divorce court rules or her own lawyer gives her opinion, I don’t buy what her husband is trying to sell.
Under California law, gifts received during the marriage of a third party made specifically to a spouse are NOT considered marital or community property. However, you deposited the money in a bank account with both names, so that the money was technically combined and, as such, was transformed from separate to matrimonial properties. Given that it was money in a joint account, you had every right to return the money to your mother.
The specter of divorce raises questions, of course, and your husband could argue in divorce court that he was guilty of the dissipation (or squandering) of marital property before your separation. A divorce court would not kindly look into this behavior and could take punitive action and order you to restore the funds. But it should probably be done in a way that was intended to hurt the other spouse. Given the source of this money, it does not appear to be the case.
There are more glaring examples of wasting marital funds: “A cheating husband can pay for his girlfriend’s $ 5,000 luxury flat a month.” according to law firm Claery & Hammond. “A vengeful woman can sell her husband’s classic $ 75,000 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 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 five more years. There may have been happy moments during this period, and some couples throw the word-D when they cross a rocky spot. According to Ben Carrasco, a lawyer in Austin, Texas: “Spouses are discouraged from challenging transactions that took place long before the breakup of the marriage in an effort to gain an advantage during the property division process.”
Carrasco assures that the burden of proving that the transfer of marital assets did not qualify as residual will fall on the party who transferred the property. But he says the timing of this transfer is also crucial: “The courts will focus on the timing of the couple’s marriage when it became clear that the marriage was in jeopardy and that important transfers were being made in anticipation of the separation and divorce, “he writes. So it’s not as clear as your husband suggests.
To sum up a long story, too late! – it looks like your husband is using the same aggressive tactic that allowed him to add his name to your bank account.
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