In a Rhode Island Divorce proceeding if you have an attorney, he or she would look to the Rhode Island General Laws, particularly Title 15-5-16.1(b).
In fact, the last sentence of that section addresses 'gifts' and states,
"The court shall not assign property or an interest in property which has been transferred to one of the parties by gift from a third party before, during, or after the term of the marriage."
Of course our jobs as Rhode Island Divorce attorneys is to argue for our clients using interpretations, case law or other law that may appear contradictory to the very law that is beneficial to the other spouse.
So, if it is a gift from a third party to either party then it is pretty much a "no brainer", right? Well, being a full-time family law attorney I will play devils advocate and say . . . not really!
Now the ....Why of my answer!
Assume the gift is a boat. Not a small boat. A large boat with three sails, dual motors, and four bedrooms, a kitchen, bathroom, and the works. Let's say daddy is rich and he gives it to his little girl, Mayford, during the marriage. Yet this boat needed to be stored in the winter time, it needed to be cleaned before storaged, it needed to be trucked to a storage facility large enough to handle it. The boat needed to be treated each year, the engines needed to be tuned each year, it needed to be maintained, etc.. All of this costs money and Mayford's husband Jim pays for all these things that are indeed necessary for the boat to be usable, to be protected as an asset and without which they would have to sell the boat because Mayford can't afford all the extras that come along with the maintenance, storage and upkeep of the boat.
Suddenly it comes divorce time and Mayford's Rhode Island divorce attorney claims the boat is a gift under Rhode Island General Laws, particularly Title 15-5-16.1(b) and therefore the court has no power to do anything with boat. It is simply Mayford's boat, plain and simple. It doesn't matter that Jim paid over $23,000 for the upkeep, cleaning, housing, maintenance and protection of the boat. At least that's what Mayford's attorney says.
Assume you are Jim for a moment. Would you want your Rhode Island Divorce attorney to just sit there and do nothing? Somehow I don't think so. Good for you! You'd expect your divorce attorney to get up there just like I would and argue that Mayford changed the nature of that gift when she asked Jim to pay for all the extras that were necessary to keeping that little luxury and it lost its status as a gift a long time ago. We'd be arguing that she commingled the marital estate, including Jim's earnings, her earnings, their time on the boat, the time spent arranging for all the things for that little gift with the marriage so much that it wasn't a gift anymore at all. We'd be arguing that it would have been a hauled away piece of junk with no value at all if Mayford hadn't encouraged Jim and the kids that it was the family boat and had Jim pay for all the necessities out of his earnings.
So when is a gift a gift under Rhode Island General Laws, particularly Title 15-5-16.1(b)? When does it cross the invisible line into being an asset of the marital estate? The truth is, I can't answer that for you. It's all about arguments that can be made and that's what experienced divorce attorneys are for. We make these arguments and we try to make sure the Judge truly does get an impartial look at things and make fair decisions given the circumstances.
After all, there is no law I'm aware of that says a judge can't find that a gift has been managed in such a way that it is now a part of the marital estate. Since this is omitted from that statute and is not addressed elsewhere, doesn't it remain in the judge's discretion?
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