Question: Six or seven years ago, my wife’s parents were having financial difficulties due to my father-in-law’s illness. Afraid that her parents would lose their home and their lake lot, my wife asked me if her folks could give all of their property to her, as she was their only child. I told her that was fine with me and paid little attention to the transaction. Over the years, however, I found that we were giving more and more money to her parents to help them, in addition to paying the taxes, insurance, and upkeep on the property they gave to my wife.

After her father died two years ago, my wife sold what had been their home and bought for her mother, now 83 years old, a patio home titled in my wife’s name. Because of the low interest rates, my wife put the equity from the sale in her name (over $100,000) and financed the new home. She still has the lake lot (worth $50,000), and has continued to subsidize her mother with our money by making all of the payments on this property.

Here’s the problem: My wife and I are now getting a divorce, and she claims that the property gifted to her is hers alone and should not be divided. I say that because our money has been involved, we in fact “paid for” these properties, because if it hadn’t been for us, all of the properties would have been lost. We have been married for 25 years, I am now retired, and $150,000 would make a big difference when we divide the property.

Answer: Generally, "marital property" includes all property accumulated during a marriage except for those assets acquired by inheritance or gift from third persons, property obtained in exchange for non-marital property, increases in value of non-marital property, and those assets that are excluded based upon a written contract between husband and wife.

Non-marital property can be “transmuted”, or changed, into marital property if there is evidence that you and your wife regarded that property as marital and used it as marital property. Based on the facts that you describe, it would appear to us that you have a very good argument that the properties in question are marital because the “gifts” to your wife were, in fact, sales, even if for less than fair market value.

If your wife’s parents did not file a gift tax return on April 15th of the year after they transferred the house and lot to her, whether your in-laws intended this to be a “gift” is questionable, especially if your wife has used your funds to support them. We believe it is a stretch to assume that parents who are having financial problems and transfer assets for the purpose of salvaging them from being used up are, in fact, making gifts. Your wife should have asked you to sign an agreement about these properties. Since she did not, we believe they are divisible.

SoloFact: Depending on the facts and circumstances of each situation, a family court judge can give one spouse more than 50 percent of property acquired during a marriage. For example, if one spouse contributes significantly more money and/or services to a marriage than the other, that person can receive an award of greater than 50 percent of the assets to prevent “unjust enrichment,” which would be the result of a 50-50 division. As in all situations, there must be objective evidence to prove this position.