A gift to one spouse from outside the marriage is separate property in a Georgia divorce, but it must be proven, and a gift of marital property between spouses stays marital.
What Makes a Gift
Under OCGA 44-5-80, a valid gift requires that the giver intend it, that the recipient accept it, and that it be delivered or some legal substitute for delivery be done. “The burden is on the person claiming the gift to prove all essential elements.” Brock v. Brock, 279 Ga. 119 (2005).
The Paper Trail Matters
In Brock, the husband’s father had his company pay him $400,000, and the father testified it was a gift. But the company reported the payment as compensation and deducted it, and the husband reported it as income. The Georgia Supreme Court held that he had not proven a gift and reversed the ruling keeping the money out of the marital estate.
In Hayes v. Hayes, 279 Ga. 741 (2005), each of the husband’s parents wrote a $10,000 check to each spouse to avoid gift taxes. The husband and his father testified that all $40,000 was meant for him. The trial court treated all of it as his separate property, and the Supreme Court held it erred as to the $20,000 written to the wife. Having structured the gift that way, the family could not undo it in the divorce.
Gifts Between Spouses
In McArthur v. McArthur, 256 Ga. 762 (1987), a couple bought a house with joint funds, and the husband later deeded it to the wife. She argued it was a gift and her separate property. Because the house was marital property to begin with, the Supreme Court upheld a jury’s award of a 35% interest to the husband.
Inheritances, like outside gifts, are generally separate, as our inherited property post explains; giving your own separate property to the marriage is covered in our post on separate property becoming marital.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!