Determining Marital Property
When going through or contemplating a divorce is it imperative that every client understands what property is marital and therefore is subject to division. Ohio Revised Code §3105.171 (A)(3)(a) provides the legal definition of Marital Property. Any asset or liability acquired by either spouse after the date of marriage is considered marital in nature regardless of whose name is on the property. Property can include, but is not limited to the following; household contents, jewelry, bank accounts, investment accounts, vehicles, real estate, artwork, ownership interest in a business, income or appreciation from separate property, personal injury property settlements, and some disability payments. Each spouse is considered to have contributed equally to the accumulation of any marital property.
In some cases there are arguments that can be made that an asset or debt is not marital even if acquired during the marriage, but that is a more complex topic to be discussed on a later blog post. If the parties cannot agree on the classification of property then the court will determine the nature of the property after each party has the opportunity present evidence in support of their position.
Determining Separate Property
Property that is not found to be marital is classified as Separate Property and is defined by the Ohio Revised Code §3105.171 (A)(6). Separate property can include, but is not limited to, any real or personal property acquired before the marriage or after a date of legal separation, passive income from separate property, any inheritance received prior to and during the marriage, any gifts received prior to and during the marriage, any property that is properly excluded by a valid prenuptial or antenuptial agreement, and personal injury awards that do not include compensation for lost wages.
As with marital property, there are arguments that can be made to include or exclude certain separate property and will be discussed on a later blog post. Again if the parties cannot agree on the classification the Court will make the determination after the parties present evidence.
How Property is Divided
Ohio Revised Code §3105.171 instructs the courts to equitably divide Marital and Separate Property. In general separate property typically remains with the owner but can be divided in certain circumstances of a Distributive Award, an award of Attorneys Fees, and/or a finding of misconduct. Equitable does not necessarily mean equal, but rather means what the court deems to be fair given the totality of the circumstances and must consider a list of factors including the duration of the marriage, the assets and debts of each of the spouses, the age and needs of any minor children, the cost of the sale of property, and any tax consequences to either party. The court determines how to divide marital property before considering any award of spousal support to either party.
Certain marital property can be complicated to divide in a divorce. One example is the marital home. This asset is usually burdened by an accompanying debt and can be a very sentimental asset for both parties. If the parties cannot agree on who will keep the marital home, the court may award the home to one party or may order that the house be sold. Many parties fail to look past the sentimental value of the marital home and fail to evaluate their ability to refinance the mortgage and the financial impact it may have on their future lifestyle after the divorce is over. Another example is the retirement assets of each party. Many times the retirement assets of the parties must be valued by a retirement expert to determine the marital and separate portion. There are many different retirement vehicles and with each vehicle come separate rules and regulations on how to divide the asset. These complicated issues will be discussed in more detail in a following blog post.
Join us next time as we continue our Nuts and Bolts of Divorce series where we will be discussing Child Custody issues.
The above is an overview of property division in the State of Ohio. It is not legal advice, and does not create an attorney-client relationship with Neyra, Mize & Associates. Your own situation should be reviewed and analyzed by an attorney.