Can you commingle physical pre-marital or non-marital property during a marriage?
September 05, 2013
Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. " The Rhode Island Divorce Coach ℠ "
In another article we discussed how you could accidentally commingle inheritance money that you received and cause it to be considered a marital asset.
Many people also wonder whether it's possible to commingle pre-marital or non-marital property that they owned before the parties got married or even gifts that had been received from their parties.
The answer is .... YES! Commingling is a legal doctrine that can be argued by any divorce lawyer or litigant and can be applied by anyone to virtually anything depending upon the circumstances. There is no set answer to every question.
A lawyer can only give you his or her best judgment about when a material possession or a peice of property has been commingled based upon detailed information about the use or participation of the material or a peice of property during the marriage. I have seen very different rulings by judges.
If you take anything that would normally be outside the court's power to divide such as a gift from a third part to one person in the divorce, it is possible to make it marital if you do things that integrate that gift into the marriage and your family.
For example, Uncle Joe gives Tammy a gift of his rare stamp collection. If Tammy were to take that stamp collection and place it for long-term storage in a safe deposit box with both her name and her husband's name on it and her husband paid extra for the safe deposit box to be particularly protected and climate controlled to preserve the value of the stamps and then Tammy later mentions to her husband that they would sell the stamps when they retire and they would use the monies to help fund their retirement, then although Tammy's gift might usually be exempt, the husband's lawyer could argue in the divorce that the things they did evidenced that it was treated as marital property and that the wife by putting it in a joint safe deposit box and mentioning it for a supplement to their retirement converted the character of the stamp collection from a gift into a marital asset.
This is just one of hundreds of examples that could be made.
Minor gifts are usually not issues in divorces. It is only when there is suffient value attached to the gift that the other spouse might find a way to argue that the conduct of the parties was such that it was clear to both parties that it changed from the gift to a marital asset.
If you have a gift of value or something your lawyer tells you is beyond the family court's power to divide, ALWAYS ask yourself this question. Has this item been treated in such a away that it could be viewed that it really was a family item and not merely the property of that one person who it was gifted to or who owned it before the marriage.
A Practical Tip: It has been argued that Rhode Island law prevents a judge from awarding anything to the other spouse that was owned by one spouse before the marriage except for any appreciation in value of the item during the marriage as a result of the actions or investment in the item by either of the parties. However, from a practical perspective, I have seen judges digress from that standard and apply the commingling principle to justify the division.