One of the most common misconceptions that arises in the context of equitable distribution is the belief that a divorcing spouse is entitled to retain any specific gifts which he or she was given by their partner during the course of the marriage. Clients often assume that a gift, be it jewelry, artwork or cash, which was given to them as a gift should logically remain theirs free and clear from any claim of the donor-spouse.
In fact, although perhaps antithetical to the concept of a gift; the general rule in Florida is that a gift from one spouse to another (termed an inter-spousal gift) is a marital asset subject to division and/or distribution. “Interspousal gifts during a marriage are marital assets subject to equitable distribution.” Dwyer v. Dwyer, 981 So.2d 1254, 1256 (Fla. 2nd DCA 2008). “Under well-established statutory and case law, an interspousal gifts during the marriage is a marital asset.” Maddox v. Maddox, 750 So.2d 693, 694 (Fla. 1st DCA 2000).
There is, however, a potential loophole which can be used to argue that an inter-spousal gift should be set aside to the recipient spouse as a non-marital asset. This loophole is predicated upon the fact that, unlike Florida, most states regard inter-spousal gifts as the non-marital property of the recipient spouse. At the same time, Florida law holds that the distribution of moveables (i.e. tangible and intangible personal property) is governed by the laws of the state where the property was acquired as opposed to the laws of the state where the dissolution takes place. "The interest of one spouse in moveables acquired by the other during marriage is determined by the laws of the domicile of the parties when the moveables are acquired.” Camara v. Camara, 330 So.2d 818 (Fla. 3d DCA 1976). See also Quintana v. Ordono, 195 So.2d 577 (Fla. 3d DCA 1967) holding “However, by the almost unanimous authority in America, the ‘Interests of one spouse in movables acquired by the other during the marriage are determined by the law of the domicile of the parties when the movables are acquired.” See also In Re Estate of Nicolas Santos, 648 So.2d 277 (Fla. 4th DCA 1995).
Therefore, all relevant facts concerning the acquisition of an inter-spousal gift should be determined before relying upon the general rule that the asset is marital in nature.