Legal Question in Family Law in New York

My spouse is making two arguments with regards to separate monies that I deposited into our joint account three weeks prior to purchasing our marital residence. He is claiming first, that I made a gift to him, and second, that the monies were transmuted.

I have done extensive case law research on Westlaw on the subject and the Appellate Division has repeatedly addressed the issue of transmutation with a joint account, but I find little to no mention by the Appellate Division of "gifts" when dealing with a fact-pattern of separate monies deposited into a joint account.....

Therefore, my question is: what is the defense against gift? Is the argument by my spouse that the monies were a gift analyzed differently than an analysis of transmutation? I am confident that I can adequately trace the source of the funds (Pullman v. Pullman) to rebut the presumption of transmutation with regards to my separate monies, but am confused on how to proceed with a defense of gift, because the case law seems silent on it, with the Appellate Division only addressing separate monies in a joint account under a commingling/transmutation argument.

What are my defenses against gift? Is gift deal with separately than transmutation? Has the Appellate Division implicitly merged the concept of a marital gift WITH the doctrine of transmutation?

Asked on 3/14/12, 2:55 pm

1 Answer from Attorneys

Daniel Clement Law Offices of Daniel Clement

A gift requires two things- donative intent and delivery. Clearly, there was delivery but you lacked the necessary intent.

I am assuming that the issue is arising in connection with a divorce. You will be entitled to recoup your separate property if you can successfully trace it.

Daniel Clement

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Answered on 3/14/12, 3:00 pm

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