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Is My Jewelry Marital or Separate?

Desai v. Desai, No.COA20-435 (July 2021) (unpublished)

Often in matrimonial cases, one party might question whether jewelry gifted to a spouse can be taken back in the property division phase of a separation and divorce. Jewelry and other assorted gifts often represent everlasting love and affection between spouses, so it is always slightly peculiar when one spouse requests the gift be returned. Below is a case about a special necklace given as part of a Hindu marriage celebration, and how our courts handled the issue.

  • Facts: A special mangalsutra necklace was given from Husband’s family to Wife, as part of the marriage ceremony. This necklace is one that is traditionally tied around the bride’s neck as part of the ceremony, to identify her as a married woman. Eventually the marriage broke down and the spouses separated. The trial court found that the necklace was a gift, and therefore separate property. The equitable distribution order gave Wife a distributive award of $48,211.25. Husband appealed.


  • Issue: Did the trial court err by classifying the necklace as separate property?


  • Holding: No, but remanded for findings of fact


  • Rationale: Husband contends on appeal that he gave the necklace after the solemnization of the marriage and therefore it was “acquired” after the marriage, placing the necklace presumptively as marital property. Wife asserts that the necklace was intended to be separate property. Gifts between spouses is only separate property if there is such intent stated in the conveyance. Gifts are defined with donative intent, and delivery of said gift. Gifts to a spouse from their parent is presumptively separate property. Gifts from third parties to a spouse must be proved as separate or marital by the party claiming such classification; for example, if an uncle gifts you a cell phone that you want to claim as separate, then you must prove that it was a gift with donative intent and without receival of consideration in return. Testimony of the donor is relevant for donative intent, or documentation characterizing the gift as one of “love and affection” is relevant for donative intent. Because this necklace was from Husband’s family to Wife, it removes the presumption that the gift was marital property. Wife testified that the necklace was given before the solemnization, and that Husband’s parents sought no consideration. Husband characterized the giving of the necklace as one born from love and affection. Therefore, there was competent evidence to show that the necklace was a gift, and separate property of the wife.