Here’s Your Gift… But I Might Want It Back in the Divorce

Holidays come and go and many gifts are exchanged between loved ones throughout the years. However, there may be the question of what happens to those gifts when a couple exchanges these gifts while still married, and then they later divorce.

Courts typically divide property in dissolution proceedings in two ways: marital and non-marital property. Under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), marital property is defined as “all property, including debts and other obligations, acquired by either spouse subsequent to the marriage.” 750 ILCS 5/503(a). Non-marital property, in short, is property that was acquired before the marriage.

It appears that the division of property in a divorce should be simple. However, what happens to the gifts spouses give to each other during the marriage? Under the IMDMA, one cannot be reimbursed for a gift made during the marriage. When one spouse claims that a certain piece of property was a gift, they must demonstrate that it is so by clear, convincing, and unmistakable evidence. In re Free, 2015 IL App. (1st) 150258-U. A spouse claiming an item of property is non-marital because it was a gift, must also show a “donative intent [of the other spouse] to pass title and relinquish all present and future dominion over the property.” Id. at P82.



For example, if a couple were to exchange gifts this year, and then they were unfortunately to divorce later on, the gifts given generally would be considered non-marital property, and generally therefore would be awarded to the recipient, free and clear of any interest of the giver.

Items such as wedding rings are property that is easily categorized as non-marital property since the rings are an exchange between the spouses. Engagement rings, on the other hand, are gifts given in contemplation of marriage, which means that the ring does not become a true gift until the marriage occurs.

Attempting to navigate this difficult distinction between marital and non-marital property, especially when it comes to gifts given between spouses can be overwhelming. If you are in need of assistance, please reach out to the attorneys at Lavelle Law to assist you with your case.

Should you have additional questions regarding the subject matter hereinabove, please call us at 312-322-7555 or email Attorney Colleen M. Breems at cbreems@lavellelaw.com to schedule your free and confidential one-hour consultation to discuss your options.