If you're about to be divorced in Florida and you have significant assets or land holdings, one term you need to be familiar with is "donative intent."
During any divorce, it's important to determine which property belongs to each spouse separately and which property is part of the marital assets.
Sometimes, there's some significant confusion -- and fighting -- over property that one spouse claims was acquired separately as a gift or inheritance.
In some cases, that property may remain the separate possession of the spouse who received it. In other cases, however, it can become part of the marital assets if the spouse who originally received it gave a share of the property to the other spouse as a gift.
What has to be closely examined is the donative intent (or lack thereof) of the spouse with original ownership. Did he or she intend to make a gift of the property to the other spouse? Was he or she sharing its ownership? What evidence exists in support of how the property was viewed by the couple during the marriage's better days?
Adding to the confusion, not all courts agree on the standard of evidence that has to be used, which means that it can be difficult to determine the outcome of any dispute over donative intent in advance.
In a recent Tallahassee case, the state's Supreme Court upheld a verdict issued by a lower court granting a divorcing wife a share in two pieces of property even though her name was not on either one. This decision reversed the one made by the appeals court, which had sided with the husband.
The trial court used "competent and substantial" evidence when it made its decision. Essentially, it examined the way that the husband handled property of his own that was not in dispute and compared it to the way he handled the disputed properties. It found that he treated his wife as a joint owner of the disputed properties whereas he retained exclusive control of those that weren't in dispute.
This now opens the issue of donative intent up to a much broader interpretation -- one that could help establish donative intent in more cases. For more information on property division in Florida divorces, talk to an attorney today.
Source: Florida Record, "Florida Supreme Court grants donative intent in divorce case, upholding standard of evidence," Tricia Erickson, May 19, 2017