Can my spouse take back the gift he/she gave me during the marriage during the divorce proceedings?
Generally, for gifts with minimal economic value such as dresses or jewelries, the receiving spouse does not have to return the gift to the pool of matrimonial assets to be divided. He/she can keep it.
Is it a gift acquired by the spouse’s personal efforts exerted during the marriage?
A property acquired by a spouse’s personal efforts exerted during the marriage, and then gifted to the other spouse, is not a gift. Instead, it is automatically classified as a matrimonial asset.
However, even if one has to return the property to the pool of matrimonial assets, the courts may still award you the same or a greater amount back to you.
If the gift is not acquired by a spouse’s personal efforts exerted during marriage but is originally an asset acquired by the donor spouse by way of a third party’s gift or inheritance, then the gift remains a gift and is excluded from the pool of matrimonial assets.
Was the gift given to you, so that you will not begin divorce proceedings?
The law recognizes that there is inequity when a gift is given in contemplation of divorce, and when there is cogent evidence that the intention was to dissuade the spouse so gifted from pursuing divorce.
However, the law still dictates that the gifted property is to be returned to the pool of matrimonial assets liable to be divided, and later allow the spouse to retain the property. Therefore, you can still retain the gift, albeit in a more principled method.
