When people who are divorcing first hear that Ohio is an “equitable property” state, many people believe this means the property is divided equally between the divorcing couple. However, “equitable division” actually refers to what the court determines as a fair distribution of property between the two parties after taking a number of factors into account.
Everything you acquire during marriage is subject to division. It doesn’t matter whose name is on a piece of property or whose money is used to purchase that piece of property.
The following steps are generally taken to determine the proper allocation of assets between the divorcing parties:
- Identify the property and debts involved in the marriage
- Value the assets
- Determine if the assets are marital property or separate property (generally acquired before the marriage)
- Allocate the assets between the parties according to their needs and applicable law
- Get court approval of the settlement agreement as fair and equitable
If a spouse has engaged in financial misconduct such as destruction, dissipation, concealment, nondisclosure, or fraudulent disposition of assets—for example, one party may have compiled huge credit card expenditures or had an affair and spent considerable money on another person—the court may compensate the offended spouse with a sum equal in value. This could be an award of a lump sum or a fixed amount payable over time, or it could mean a greater overall award of marital property.
The following factors are generally taken into consideration when dividing marital property:
- Duration of the marriage
- The economic circumstances of each spouse when the division of property becomes effective and the desirability of awarding the family home, or the right to live in the residence for a reasonable period, to the spouse with custody of any children
- The reasonable opportunity of each spouse for future acquisition of capital assets and income
- Obligations arising from either party’s prior marriage(s)
- Any pre-nuptial or post-nuptial agreement of the parties
- The age, health, occupation, amount and sources of income and the vocational skills, marketable skills, debts, and needs of each party
- The tax consequences of each spouse regarding the division of marital property
- The liquidity of any property to be divided
When considering marital property in Ohio, the following are generally NOT considered:
- Property awarded by gift, legacy, or descent (this includes any inheritance)
- Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent or property owned before the marriage
- Property acquired after a judgment of legal separation
- Property excluded by valid agreement of the parties (certain property listed in a pre-nuptial agreement)
- Property obtained by judgment awarded to a spouse from the other spouse
- Personal injury settlements or awards
While a divorce is ongoing in Ohio, it is a good idea to close all joint marital accounts and open separate bank accounts. Until the accounts are separated, a formal written agreement
about the activity on any such accounts is recommended. If you plan to continue joint accounts for any reason, have a written agreement about how funds are to be used and require the signature of both parties before any funds can be withdrawn.
You may also want to consider negotiating the payoff of debts with any assets left after the divorce. Pension plans, 401Ks, and other retirement funds subject to the Employment Retirement Security Income Act (ERISA) must be divided when divorcing through what is known as a Qualified Domestic Relations Order (QDRO).
Ohio Revised Code 3105.171 defines the equitable division of marital and separate property and answers further questions about the division of marital property during divorce.
The best solution in property division upon divorce
The ideal solution to dividing up the marital estate is to agree on the way the division will take place. This removes uncertainty and ensures that any personal issues regarding particular assets will be addressed. In any event, this divorce area can significantly impact your future financial situation, your quality of life, and any children involved in a divorce.
Do I Need to Hire An Attorney?
You will need to ensure your legal rights are fully protected and that you have the type of divorce lawyer who works closely with clients to ensure their financial interests are protected and that property division is fair and equitable. Call Slater & Zurz LLP today at 330.762.0700 for a free consultation and to learn more from an Akron family law attorney about dividing property in a divorce.