Legal Question in Real Estate Law in California

Divorce [Personal Property & Gifts]

Hi -

My sense is that the dining room set is yours to keep and that your former sister-in-law (sister) will have difficulty reclaiming it. First, by and large, gifts, once given, are difficult to recover, unless the person making the gift was induced to do so through fraud or some other improper means. That doesn't appear to be the case here. The sister made this gift to you and your husband while you were married and it was divided along with your other marital property in your divorce - nothing unusual about that. Second, although the divorce papers may not specifically mention the "dining room set," there is probably some general language to the effect that you and your former spouse were to divide your personal property in a mutually-agreeable way, with any disputes to go back before the court. So by you retaining the dining room set, the implication is that you did so pursuant to mutual agreement between you and your husband. Finally, even if your sister did have a leg to stand on way back when she first made the gift in 1998 (arguing that the set should be returned to her b/c she gave you the set just prior to your split), she has since waited five years, which is far too long for her to raise that issue now.

My prediction if your sister takes you to small claims court: you win and get to keep the dining room set.

Good luck if and when you go to court, make sure to dress accordingly, be poised and polite, and be prepared.

Re: X Sis in Law wants to reclaim gift of furniture

This is a very interesting situation. It will probably go to Small Claims Court but don't worry about. The worst they can happen is you have to return to set. My sense of it is if presented properly you should be able to keep the set. Remember it came from your sister a lot to you in your husband. Now that your divorced her loyalty is with your husband. The original transfer will depend upon the intent at that time. Wasn't a gift to be capped by both you and your husband or alone to be held by you in your husband until she wanted to get back? If there is nothing in writing to show this and I expect there isn't it will be done by testimony. Remember though you in your husband are adverse to each other, your divorced, and therefore you would expect the testimony to the contrary to your best interest. You must in some manner show that to the court. Additionally this is a dining room set, it's a bunch of furniture and is not saying that you normally would put in somebody's home subjects to your getting back at anytime based upon your desire for whatever reason. The problem you do have do is it wasn't dealt with in the divorce papers. If there was a division of personal property in the divorce papers listing numbers of items of personal property in showing cool was to receive them why wasn't the dining room set included. You're going to have to come up with some reasonable explanation for the court if the court asks it or at that point is brought up. Remember it is your sister-in-law's obligation to show that she owns that set and has a right to its return. Possession is really not 9/10 of the law but in this case because you've had its so many years under your total control it would appear that it is yours to keep as you only and it was not intended as a lone of furniture.i have been practicing law in this speciality for over 30 years in the san francisco bay area and if you wish to consult with me you can contact me at 925-945-6000.

Re: X Sis in Law wants to reclaim gift of furniture

Title to personal property given with intent, at the time, of making a gift passes when possession of the property is turned over to the donee by the donor.

A gift thus made is irrevocable in the absence of fraud, mistake or a showing that there was no delivery or no intent to make a gift. Courts will usually presume a gift and require solid proof of one or more of the factors that would upset the gift presumption.

In court, you might still have to deal with the fact that the gift was made to the marital community during your marriage; therefore, your ex-husband theoretically has a half interest. If you're on speaking terms, maybe he would give you a bill of sale for his 1/2 interest for $1.