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Separate Property - Gift?


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#1 LegolSmeagol

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Posted 26 November 2012 - 04:21 PM

I have a case where the husband put two houses that are his separate property in his wife's name. Are those gifts? Is there some specific language that must be present to make them gifts? Who's property are they in the divorce?

Thank you.

#2 FindLaw_Amir

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Posted 27 November 2012 - 07:34 AM

To learn more about this subject matter, you may wish to visit the Family Law Center: Divorce and read Divorce & Property as a good resource.
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#3 pg1067

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Posted 27 November 2012 - 07:45 AM

I have a case where the husband put two houses that are his separate property in his wife's name. Are those gifts?


Depends on the applicable state law and whatever facts are relevant under that law. You didn't identify the state where this occurred or provide any facts at all.


Is there some specific language that must be present to make them gifts?


Not likely, but see prior response.


Who's [sic] property are they in the divorce?


I think this is basically the same question as the first question you asked. If so, then the answer is the same. If not, please clarify.

#4 LegolSmeagol

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Posted 27 November 2012 - 08:29 AM

I'm sorry. This is in Texas. I guess the real issue is. She does not want the property in the divorce. Found this out after posting. If it was a gift and it is now her separate property, does she have to gift it back to him? The deed was delivered to her.

#5 Tax_Counsel

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Posted 27 November 2012 - 09:51 AM

I'm sorry. This is in Texas. I guess the real issue is. She does not want the property in the divorce. Found this out after posting. If it was a gift and it is now her separate property, does she have to gift it back to him? The deed was delivered to her.


Was the deed recorded?

#6 LegolSmeagol

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Posted 27 November 2012 - 10:41 AM

Unknown. Given that it was likely given to her to prevent seizure, I would assume yes.

#7 adjusterjack

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Posted 27 November 2012 - 11:23 AM

I'm sorry. This is in Texas. I guess the real issue is. She does not want the property in the divorce. Found this out after posting. If it was a gift and it is now her separate property, does she have to gift it back to him? The deed was delivered to her.


For one thing, it's not likely her "separate property." Texas is a community property state. If the properties were his separate property and properly segregated from other community assets, then deeding them to her very likely made them community property unless the deed specified in words that they were deeded to her "as her sole and separate property."

If she doesn't want the properites all she likely has to do is quitclaim the properties back to him using the same phrase on the deeds and record the deeds.

However, at this point, I suggest she use the properties (since she has title to them) as leverage to get herself a good divorce settlement.

She should be consulting an attorney and reviewing her options.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#8 pg1067

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Posted 27 November 2012 - 01:49 PM

First follow up question. You said that you "have a case where the husband put two houses that are his separate property in his wife's name." Since you're apparently neither the husband or the wife, what exactly do you means when you say you "have" this case?


This is in Texas. I guess the real issue is. She does not want the property in the divorce. Found this out after posting. If it was a gift and it is now her separate property, does she have to gift it back to him? The deed was delivered to her.


You guess? I'm still not sure I understand the issue here." If it was a gift and is now her separate property, she does not "have to gift it back to him." However, if she doesn't want the property, and if he does, why wouldn't she "gift it back to him"? I suppose there might be an issue if neither of them wants the property, but if the wife doesn't want it and the husband does, then what's the issue?


Given that [the property] was likely given to her to prevent seizure, I would assume [the deed was recorded].


First of all, I'm now not sure if we're talking about one property or more than one (your original post mentioned "two houses," but you're not using singular pronouns). In any event, for purposes of determining whether the deeding of the properties from husband to wife constituted gifts, I'm not sure it makes any difference whether or not the deeds were recorded. What does matter is why the deeds were given and what they say (along with any other discussions or writings between the spouses). I'm also not sure what you mean when you say the deeds were "likely given to her to prevent seizure." Seizure by whom and how?


For one thing, it's not likely her "separate property." Texas is a community property state. If the properties were his separate property and properly segregated from other community assets, then deeding them to her very likely made them community property unless the deed specified in words that they were deeded to her "as her sole and separate property."


I agree that the words in the deed are important. I disagree that a deed granting H's separate property to W would "very likely" result in the transmutation of H's separate property into community property unless the deed expressly stated that the property was being granted "as her sole and separate property."




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