I had a client come into my office the other day who asked this question. She was married to her soon to be ex for about eleven (11) years. Her current spouse is quite a bit older than she. She is a very attractive woman. In a manner of speaking, she is a trophy wife. He is a successful entrepreneur, whom she married for financial security. The marriage worked out well for both of them during the eleven years they were together. But, as often happens, they grew apart and will be going their separate ways.
During the course of their marriage, he bought her expensive jewelry twice a year. That was a ritual they had. Now that they are parting ways, she wants to know if she will be forced to sell the jewelry and give him half the proceeds when they divorce.
The general rule in California is that all property acquired by the parties during the time that they are married and living together, is considered to be community property and will be equally divided among them when they get divorced. However, as with most everything else, there is an exception to that rule. The exception is carved out in California Family Code section 770 (a) (2) which provides, inter alia, that all property acquired by a married person by gift or bequest, is separate property.
In order to prove that the jewelry was intended to be a gift, the wife must show three things. First, that her ex-husband intended that the jewelry he bestowed upon her was to be a gift. This should not be hard to prove. For instance, if she can provide evidence of a gift card that accompanied the jewelry at the time she received it, that would be evidence that he intended for it to be a gift. Evidence that they went out to celebrate a special event, such as their anniversary or her birthday, at the time she received the jewelry, could also be evidence that he intended the jewelry to be a gift. Second, she will have to prove that he gave her the jewelry. This should not be hard to prove, since they had a bi-annual ritual of him giving her expensive jewelry. Third, she must show that she accepted the jewelry. This last element can be proved by her testimony, as well as evidence of the surrounding circumstances when she received the jewelry and took it into her possession.
If the trophy wife can prove the above three elements, she may be able to keep all of her jewelry when she and he ex-husband part ways. It would be considered her separate property.
Suppose a slightly different set of facts. Suppose that the successful husband in the above scenario, was a well know jeweler, rather than an entrepreneur. Suppose that he too, gave his wife expensive jewelry twice a year. Suppose further, that the jeweler husband testified that the reason he gave his wife fine jewelry twice a year was so that he could promote his business. When people saw his wife wearing the jewelry, it drove business to his office. In that situation, a court could conceivably find that the jewelry was not a gift. Rather, that it was given to the wife for the purpose of promoting the husband’s business. In that situation, a court may find that the jewelry was, in fact, community property, and order it sold and the proceeds divided between the parties. Alternatively, a court could allow the wife to keep the jewelry, and award the husband other assets of equal value.
In sum, whether or not a wife will be able to keep her jewelry in a California divorce, will depend upon her ability to prove that it was a gift. If it was a gift then it is her separate property, even if she received it during marriage.