Tag Archives: gift

Your Granddad’s Clothes

The Family Use Doctrine.
Under the “family use doctrine,” any separate property, owned by one party, but used extensively by a family is converted to a marital asset. See Stewart v. Stewart, 864 So.2d 934 (Miss. 2003); Hankins v. Hankins, 866 So.2d 508, 511-512 (Miss. Ct. App. 2004).  This means that your granddad’s clothes, or more importantly that Destin beach house you inherited, while initially separate property, can lose its separate status and be considered a marital asset by the Court.

How does this happen?  By showing “Proof of family use.

For instance, if the parties were married on the beach in front of the beach house and honeymooned there. The parties both testified that they frequently stayed in the beach house and both parties’ family used the beach house throughout the marriage. The parties used the home on holidays; including Easters, Thanksgivings, Christmas, Birthdays and as a getaway.

Both parties made Contributions to the care and upkeep of the beach house during the marriage:

The spouse made considerable efforts and contributions to the beach house. She designed, picked out and arranged the majority of the furnishings and decor of this home. She helped in the maintenance and upkeep of this home by cleaning, cooking, vacuuming, mopping, doing dishes, laundry and the like. She and her family performed maintenance on the home, including lawn maintenance and general repair.  The husband also contributed to this home financially from joint accounts, in kind by his efforts during the marriage and he also otherwise cared for the property.

The Court can find that the beach house has lost its separate status due to family use and is a marital asset subject to equitable distribution.

So, just know that gifts, inheritance and otherwise separate assets, owned only by one party before the marriage, MAY lose their separate status if they are used throughout the marriage.

Matthew Thompson is a family law attorney in Mississippi and recommends that if you intend that your Granddad’s clothes, or beach house, not be subject to division by the Court in a divorce, either get a pre-nup or don’t use it. Tough advice, I know…

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You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms


Ringing In Valentine’s Day; Who gets the Ring when things go Wrong?

Valentine’s Day is one of the most popular days to get engaged!  Along with Christmas and New Years, Valentine’s Day is the holiday for popping the question.  But who gets the RING if things don’t pan out?

In Mississippi, the ring is a pre-marriage gift.  It can be argued that the ring is actually a conditional gift creating a contractual obligation.  How Romantic!

Here’s the scenario.  An offer of marriage is proposed and a ring given in exchange for a “Yes,” being an agreement to marry.  So long as both parties uphold their end; the fellow gives the ring and the lady marries the fellow = offer + acceptance & valuable consideration.  At this point the contract is fulfilled and the rings is now the property of the lady.  But what if they were only married for a minute?  Well, if they married the contract is fulfilled.  Certainly, there could be exceptions due to fraud or overreaching, but these are not typical.

The chancellor properly concluded that the engagement ring was a gift from [the fellow] to [the lady]. That gift necessarily predated the marriage of the parties. Thus, it was an asset brought by [the lady] into the marriage and was not a marital asset subject to equitable division. MacDonald v. MacDonald, 698 So.2d 1079 (¶ 13) (Miss.1997). It was, therefore, beyond the chancellor’s authority to order [the lady]  to return possession of that item to [the fellow] and the refusal to do so cannot constitute reversible error on appeal.  Neville v. Neville, 734 So.2d 352 (Ms.App. 1997).

Want to be safe, legally speaking anyway? Then make your marriage proposal contingent, as follows*:

 “Dearest One,

I love you and desire to marry you.   As a symbol of same, I am making a wholly contingent offer to you of this ring, of significant monetary and sentimental value, but a likewise sizable lien against same, in exchange for your promise to marry me. In the event that we do NOT get married, then said ring shall be returned to me in the same condition as presented, or alternatively you may elect to assume said lien, in full, for said ring and shall indemnify and defend me from any liability thereon.  ‘Will you accept this rose?'” *(a paraphrase of colleague J. Kitchens)

Matthew Thompson is a family law attorney that you can engage in the event you need a divorce, and if you use the above contingent marriage proposal, you just might!