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The Difference Between Marital Gifts and Loans


Starting out as a newly married couple can be difficult, especially when it comes to finances. Recognizing this, many families step in and help out their loved ones financially in setting up their household or just settling into married life. These exchanges are usually given and received with gratitude and appreciation. The specifics, however, of how the family member who is providing the funds views that exchange often don’t come up, and while this doesn’t usually become an issue during the couple’s marriage, it can play a critical role in the property division process if that person later wants to recoup the money, so if you are considering divorce and have questions about whether a transaction between you and your spouse and a relative qualifies as a loan or a gift, it is crucial to speak with an experienced property division attorney who can advise you.

Dividing Marital Property

When it comes to dividing marital property, Florida requires couples to share their assets equitably. However, this only applies to assets that were actually acquired during a couple’s marriage, although there is an exception for gifts and inheritances, under which divorcing couples are allowed to count these assets as separate property even when they were acquired during the marriage. Unfortunately, it’s not always easy to determine whether a gift was only for one spouse or was given to both parties, or was not a gift at all, but was instead considered a loan.

Gifts vs. Loans

Florida courts tend to identify transactions between family members as gifts when possible and will usually only treat monetary exchanges as loans when clear evidence exists proving that the parties viewed it as such. Generally, an exchange will only qualify as a gift if the following elements are in place:

  • The giver took some action to deliver the gift, whether symbolic or actual;
  • The giver intended to the exchange as a gift;
  • The recipient accepted the gift; and
  • The owner relinquished possession of the asset to the recipient.

If these elements are present in an exchange, then it is likely that a court will deem the asset in question to be a gift, which means that the original giver would be barred from seeking reimbursement. Loans, unlike gifts, are given with the expectation of being returned or repaid.

Providing Evidence

In attempting to determine whether a transfer qualifies as a gift, courts assess a number of factors, including the timing and context of the exchange. If, for example, the money in question was given at the time of the marriage and was then used to purchase a home, the giver could have  signed a gift letter, which is often required by banks to ensure that a transfer is not a loan. Periodic payments, on the other hand usually indicate that a transfer is a loan, especially if it is paid to a third party to support a business endeavor or to settle a debt. Emails, cancelled checks, and notations can also be used to discover the nature of the exchange. If determined to be a gift, the asset could be split down the middle or given to the person whose family provided it, depending on what the court deems to be an equitable solution.

Contact Our Legal Team for Assistance

Please contact dedicated Fort Lauderdale property division lawyer Sandra Bonfiglio, P.A. for a free consultation. We can be reached at 954-945-7591 or via online message.


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