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Asset Protection (equitable distribution): Gift to One Spouse in New Jersey

Posted on Mar 26, 2014 by admin in blog news

Is a gift given to one spouse protected from future equitable distribution claims by the other spouse?

The burden of establishing immunity from equitable distribution of a particular asset rests with the party who seeks to exclude an asset. Painter v. Painter, 65 N.J. 196, 214 (1974). Ultimately, the fashioning of an appropriate allocation of marital property is vested in the discretion of the trial judge. Savoie v. Savoie, 245 N.J. Super. 1, 5 (App. Div. 1990). Nevertheless, the findings of fact must be supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The party seeking to exclude an asset, for example a gift, must bring clear and unequivocal proof of the donor’s intent at the time of making the gift and of the party’s precautions to retain control of the assets Dotsko v. Dotsko, 244 N.J. Super. 668, 676 (App. Div. 1990), without commingling of the assets with marital assets, even for a short time Hopkins v. Hopkins (N.J. Super., 2010).

To put the above into layman’s terms: to exclude property from equitable distribution, aka claims by the spouse, the donor must have intended a gift to only one party, and the receiving party safeguarded the property from the other spouse, without intermixing the gift assets with joint assets.

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