Is Property Gifted During Marriage Separate Property?

Full question:

I inherited property before I was married but after the marriage I put my ex on the deed. Is she solely entitled to the property if not divided before the divorce. Also does she have the right do deny me access the premises?

• Category: Divorce
• Subcategory: Property Settlements
• Date: 04/07/2025
• State: North Carolina

Answer:

The answer will be a matter of subjective determination for the courts, based on all the circumstances involved. It is possible that the court may find you made a gift of separate property. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.

Marital property is generally considered to be all property acquired by a couple during their marriage or earned by either spouse during their marriage. It is all property owned by the marital estate. Generally, gifts or inheritances to either spouse along with any money or property earned prior to the marriage are the separate property of that spouse unless it is somehow "converted" into marital property. Joint property is property with more than one owner. In divorce law, joint property is distinguished from a marital asset, which refers to all property acquired during the course of the marriage, regardless of ownership or who holds the title to it. Marital assets may consist at least partly of joint assets. Joint property may be owned under different forms of ownership.

In cases where the asset is claimed to be converted to marital property by commingling, in order to prove the separate nature of the property, the other spouse may attempt to trace the funds used to separate property, such as when funds from a spouse's separate property home owned before marriage are used to purchase a joint home after marriage. In such cases, having documentation regarding the source of funding is used to trace the separate funds used to purchase the marital asset.

Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.

The court makes a distinction between marital assets and separate assets Marital assets are assets acquired during the marriage. Separate assets are asset which one party acquired prior to a marriage and maintained as separate property, property inherited during the marriage and property received as a gift by one party during the marriage. A party can turn a separate asset into marital asset by commingling the asset. Examples include: adding a new spouse's name to a bank account, car title, or deed to the home as joint tenants with right of survivorship.

Gifts between spouses pose problems. Many courts presume gifts from one spouse to another to remain marital, rather than separate, property. Some courts allow this presumption to be rebutted with clear evidence that the gift was intended to be the property only of the recipient. Courts can also look at factors such as the intention of the giver, along with whether the gift is subsequently used by one or both spouses.

North Carolina is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court's discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the following factors:

1. The income, property, and liabilities of the parties;

2. Any obligation for support from a previous marriage;

3. The duration of the marriage and the age, physical and mental health of the parties;

4. The needs of the custodial parent;

5. The expectation of pension, retirement or other deferred compensation rights that are not marital property;

6. The contribution to the decation or earning potential of the other spouse; and,

7. Any other factor the court deems just and proper.

Usually each spouse has as much legal right to be in the home as the other, until a court orders a spouse to have "exclusive possession" of the matrimonial home, or one spouse agrees to move out. Simply not wanting to live with your spouse isn’t sufficient grounds to lock him or her out of their home. However, if you have grounds to fear immediate violence, it may be reasonable to lock your spouse out until the police can be contacted and a restraining order obtained. Emergency, temporary court orders can be obtained in extreme circumstances.

A spouse has a right to reside in the marital residence unless there is a court order otherwise. Sometimes when a divorce action is filed, one party will ask for exclusive possession of the marital residence to be awarded pending the distribution of assets in the divorce decree. In some cases, a party will ask for a restraining order to prevent another spouse from entering the premises. Typically, a threat of harm needs to be shown before the court will grant a restraining order. However, without a court order, a spouse may not lock another co-owner spouse out of the home when the other spouse hasn't already abandoned the premises.