In split, husband can keep gift from mom

My husband and I are divorcing after 14 years. Before we married, his mother gave him $78,000. He used it to buy our house a year before we married. I was put on the deed five years ago. If I stay in the house until our children graduate, can he demand this $78,000 when I sell it? 

Yes. He can claim the $78,000 as "separate property," says Stephen W. Schlissel, a Garden City divorce attorney.

Almost everything acquired during a marriage is a marital asset, no matter whose name it's in -- and in New York, marital assets are divided "equitably," or fairly. Courts decide what's fair based on factors like the duration of the marriage and the respective contributions of the spouses. These include contributions to maintain the home and care for the children. The major breadwinner doesn't automatically get the lion's share of marital assets.

But an asset one spouse owned before the marriage, or acquired during the marriage as a personal gift or bequest, or as the result of a personal injury lawsuit, is "separate property," provided it was never commingled with marital assets. Had your husband put the $78,000 into your joint bank account, it would no longer be separate property, says Eric Dubinsky, a Westbury divorce lawyer.

But as the down-payment on a house he purchased before your marriage, it remained his. Your husband gave you a half-share in the house by adding you to the deed. Nevertheless, says Schlissel, he still can claim his separate $78,000, plus any appreciation in its value that wasn't due to the efforts of either spouse. Appreciation that's attributable to those efforts is a marital asset.

The bottom line. In a divorce, you keep assets you brought to the marriage if they weren't commingled with marital assets.

Websites with more information
Click here and here to read more on this topic on Lynn Brenner's blog, Family Finance.