Ohio Divorce: Gifts Between Spouse- An Exception to the Rule in Property Division

In Ohio, the general rule of thumb is that in the event of a divorce, a spouse will be able to retain his separate property. For a more full explanation of separate and marital property and property division, see http://www.perlalaw.com/blog/how-does-a-domestic-relations-court-in-ohio-divide-property-in-a-divorce/ However, there is a particular exception to the rule that some practitioners may overlook.

In Ohio, a spouse can convert separate property to marital property by making a gift of the separate property to their spouse. There are two essential elements to effectuate a gift. First, the spouse making the gift must have an intention to transfer the title and right of possession of the property to the other spouse at the present time. Second, there must be a delivery of the gift by one spouse to the other. Hence, there must be an intention to gift and delivery of the gift. Often spouses will be co-owners of property. This may be done for purposes of convenience or estate planning purposes. While this may be evidence of the delivery of a gift, it will be insufficient alone to meet the burden of showing a gift. The first element, an intent to gift, must also be shown.

For more information on divorce and property division, see the Family Law category of our blog.