Must I Share my Gift? A Quick Guide of Gifts in Illinois Divorce

In a divorce, the Illinois court will divide property into two categories – marital and non-marital property.   To keep it simple, marital property will be divided.  Non-marital property stays with the owner in name and possession. 

Marital property is any property acquired during the marriage.  “Marital property” means all property, including debts and other obligations, acquired by either spouse subsequent to the marriage.” 750 ILCS 5/503(a).

Illinois defines non-marital property as among other things, “property acquired by gift.” 750 ILCS 5/503(a)(1).  The case of In Re Marriage of Schmidt, 610 N.E.2d 673 (Ill. App. Ct. 1993), clarified that a valid gift requires proof of donative intent and delivery of the property. 

For a quick glance, the list below is non-exhaustive but covers the normal “gifts” given. 

Non-Marital Property - Gifts

1 - Engagement rings are non-marital property.  As a conditional gift on the execution of a marriage.  Once the couple marries, the ring becomes non-marital property.

2 - Wedding rings are given during the marriage ceremony as a symbol of the parties love and commitment to the other, and as such, a gift of their love for the other.  Wedding rings are non-marital property.  

3- Money, land, cars, etc. from a parent is presumed to be a gift.  An inheritance is a gift even if a portion or percentage was given in advance.  Essentially, anything from a parent is a gift.   

Marital Property - Gifts

1 - Any kind of property from any family member other than a parent is not considered to be non-marital property, and my divided in divorce. In re Marriage of Awan, 902 NE 2d 777 – Ill: Appellate Court, 3rd Dist. 2009.

2 - Wedding presents are gifts to the couple, therefore both parties own them equally and they will be divided as marital property. 

Grey Area Property – Gifts

Where spouses have given each other gifts during the marriage, the facts surrounding the gift are very important.  “In Illinois there exists a presumption of gifts, where a transfer of property is made from one spouse to another…but the gift must be proven by clear, convincing, and unmistakable evidence to overcome the presumption that all property acquired subsequent to the marriage is marital.” In re Marriage of Weiler, 629 NE 2d 1216 – Ill: Appellate Court, 5th Dist. 1994.

In these cases, it’s important to have as much evidence as possible to show the gift was in fact a gift even thought the court will likely rule that such gifts are non-marital property.   Holiday and birthday gifts are usually easily decided to be non-marital property.  Along the same vein, gifts given between spouses for tax purposes are non-marital property as well.  This includes buying property for your spouse and putting it in their name.  That gift of property is non-marital property.  But, as always, it’s best to have proof that it was a gift.

CAUTION!

Just because a gift is given that does not mean it is non-marital property.  This is in direct conflict with the rule that an asset acquired after marriage is marital property. “There is a conflicting presumption, under section 503(b) of the Act (Ill.Rev.Stat.1991, ch. 40, par. 503(b)), that property acquired after the marriage is marital. When conflicting presumptions are presented, they cancel each other out and the trial court is free to resolve the issue of whether the property acquired by the transaction was marital or nonmarital on the facts.” In Re Marriage of Schmidt, 610 N.E.2d 673 (Ill. App. Ct. 1993).

Moreover, any co-mingling of non-marital property with marital property may deem a gift marital property.  For example, you deposit an inheritance of money into a joint bank account shared with your spouse.  That inheritance is now divisible upon separation.  In re Marriage of Mouschovias, 831 NE 2d 1222 – Ill: Appellate Court, 4th Dist. 2005. 

If you or your spouse received a gift and would like to know how that gift may affect a divorce, please contact a Chicago divorce lawyer to discuss the situation with an experienced Chicago divorce lawyer.