Before we were married we lived together in an apartment. My earnings and his regular earnings went into a joint account that we lived off of. His overtime earnings went into an account soley in his name. After we were married, he wrote a check for the down payment for our house from this account and says he now wants his $30k back. Keep in mind that I had been the sole wage-earner for the last 4 years of the marriage and that he had several gaps in his career history over time.
I say that this would be considered as a gift to the marriage since it was used to purchase marital property. He said his lawyer said he could absolutely get it back.
Can he really get this money back somehow? Please tell me no.
I would agree that with your position that the down payment on the home would be a gift to the marriage. Your ex may argue that the 30k is traceable as separate property, however if the home was purchased after the marriage and deeded to the two of you as tenants by the entirety, I believe your position would prevail.
Is this subjective based on the judge’s opinion or is this pretty much a given fact? Are there situations in which my position would not prevail? There was no pre-nup or anything.
If the home is in both parties’ names, it is presumed to be martial property, and separate funds used for down payments are presumed to be a gift to the marriage. Of course the judge can hear evidence as to your ex’s intentions, and may find that he did not intend a gift, it will be determined on a case by case basis.