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Everyone gets gifts.  Whether it was Christmas, a birthday or a wedding, you received at least a gift or two. (Unless Santa put coal in your stocking)  When it comes to gifts typically Aunt Karen isn’t going to ask for it back either.  The only gift you’re likely to lose is that car you got when you were 16 because you violated curfew or flunked.  When someone gives a gift there is an expectation that it is permanent.  For the most part this holds true in divorce as well whether you want it to or not.  It is what is defined as an irrevocable gift.

So, what makes a gift?  You have to intend to give it to someone as a gift, actually give the person the gift and the person must accept the gift.  If those facts exist, the property is a gift.  However, some gifts are given with conditions.  Such as an engagement ring, where it is given to someone with the promise the couple will marry.

The Texas Family Code states that property owned prior to marriage and recovery for personal injury claims except loss of earning capacity remain a person’s separate property.  The code also states that any gift, devise or descent is separate property as well.  This means that property you got in a will is yours.  That Apple Watch you got for your birthday is yours.  That Christmas gift is yours.  However, you need to prove this as there is an assumption made in every case that all the property is community property (owned by the married couple together).  So, make sure you keep records if they’re available.

What about engagement rings?  The conditional-gift rule applies as stated in Curtis v. Anderson.  Well, if it’s before the marriage takes place and the person who received the ring breaks off the marriage, then the giver of the ring gets it back.  However, if the person who gave the ring breaks it off, there’s no contractual reason to get the ring back.  What about after you get married?  Well, Texas courts have determined over and over that once the couple is married they have completed their promise to get married and therefore the ring becomes their separate property.  Although not always the case with family heirlooms, more often than not the heirloom becomes your spouse’s property.  It comes down to an argument of fairness and sentimental value.  So, make sure you really think it’ll last before giving that special someone your Grandmother’s ring.  Options do exist though for ways to get the ring back or the other gift if you are willing to get creative.

If you find yourself in a difficult situation and need to discuss this with someone, you can always reach out to an attorney to give you some advice and direction.  Please feel free to give Rasley Law Group a call at 972-584-7626 or visit our website at www.rasleylaw.com.