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Gifts Given in a Short Term Marriage May Be Returned to the Donor

On Behalf of | Mar 19, 2014 | Divorce & Family

In Sweetnam and Sweetnam, the New Hampshire Supreme Court had to decide whether a husband or a wife may give a conditional gift during the marriage and what happens to the conditional gift upon divorce. The parties in Sweetnam were married for less than four years. During the marriage the wife purchased property in New Hampshire with her income and assets as the husband was unemployed. While the wife put the husband’s name on the deed because she thought it would be a nice thing to do, she sought at the time of the divorce to be awarded the property entirely as the husband did not make any contributions to the purchase thereof. The trial court awarded the husband 50% of the property, ruling that the gift of the property was not conditioned upon the parties’ continuing to remain married.

On appeal, the New Hampshire Supreme Court ruled that when a husband and wife take title to real estate as joint tenants with the purchase of funds from one spouse only, there is no presumption that the property is a gift from one spouse to the other. In supporting its decision, the New Hampshire Supreme Court relied on the Restatement of Restitution which states that justice may require the creation of a condition if the gift is intended so long as the parties continue to be married, even if the person giving the gift had no such condition in mind at the time of making the gift. The New Hampshire Supreme Court found that the facts supported such an implied condition and further ruled that the husband had the burden of establishing that an absolute gift was intended and not a conditional gift. Given the short-term nature of the marriage, the Supreme Court found that the gift was conditional and awarded the property solely to the wife.

If you have any questions regarding conditional gifts, please contact an attorney at Hamblett & Kerrigan to discuss.


Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court.  Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.