How Property Is Divided in a Canton Divorce
Dividing your assets during a divorce can be emotionally draining and difficult without the help of a qualified attorney. A Canton property division lawyer can help you understand your rights when it comes to marital and separate property. Ohio is an equitable distribution state meaning that the court will divide assets based on what is equitable between the spouses. Equitable, however, does not always mean equal.
At Slater & Zurz, we understand how challenging it can be to determine what your needs are now and will be in the future. Our Canton property division lawyers will help you protect your assets and ensure that you receive a fair portion of your property. If you are considering filing for divorce, contact our office at (330) 968-2547 for a FREE, no-obligation consultation.
Ohio follows the rule of equitable distribution when determining how to divide assets and liabilities in a divorce. Unlike a community property state where marital property is divided 50/50, an Ohio court of common pleas will divide marital property based on what it determines would be equitable between the spouses. If an equal division of property would be inequitable, the court will not divide the property 50/50.
Division of property is codified into state law under Section 3015.171 of the Ohio Revised Codes. Because the division of property in a divorce can be contentious, it is always recommended that you seek legal counsel before filing. If you are filing for divorce or legal separation, contact our Canton property division lawyers to discuss your case at no cost.
In order to achieve an equitable distribution of marital property, the court may make a distributive award to a spouse. A distributive award is separate and apart from spousal support which may be awarded by the court. A distributive award may be paid in a lump sum or in fixed amounts over time. It is designed to help achieve equity between spouses.
Factors considered in a distributive award:
- Duration of the marriage
- Assets and liabilities of both spouses
- The desirability of awarding the family home to the spouse with custody of minor children
- Liquidity of the property
- Economic desirability of keeping an asset or interest in an asset intact
- Tax consequences
- Cost of sale
- A separation agreement voluntarily entered into by both parties
- Retirement benefits
- Any other factor the court finds relevant and equitable
The court may also decide to make a distributive award in lieu of dividing marital property if dividing the property would be “impractical or burdensome.” In order to determine whether a distributive award should be issued, the court must first distinguish what marital property is owned by the spouses.
Marital property is any real or personal property that is acquired during the marriage. Marital property includes but is not limited to a person’s income, retirement benefits, and any interest in real or personal property acquired by one or both spouses during the marriage.
The court generally determines “during the marriage” as meaning from the date of the marriage through the date of the final hearing in an action for divorce or separation. However, the court may use a different date to determine “during the marriage” if those dates would be inequitable to either spouse.
Marital property is different from a separate property which is non-marital assets that are acquired before or during the marriage by one spouse. To prove that something should be considered separate property, a spouse must trace the origins of the asset and provide evidence to the court that it is not marital property.
In general, separate property includes:
- Any inheritance by one spouse
- Real or personal property or interest in real or personal property acquired by one spouse prior to the date of the marriage
- Passive income and appreciation acquired from separate property
- Real or personal property or interest acquired by one spouse after the date of legal separation
- Property excluded by an antenuptial (prenuptial) agreement
- Portions of a financial recovery related to a spouse’s personal injury, such as compensation for pain and suffering
- Gifts made after the date of marriage – given to only one spouse
A spouse must show through clear and convincing evidence that the assets are separate property. It is important to note that Ohio law considers any income and appreciation on separate property that is due to the “labor, monetary, or in-kind contribution of either or both spouses that occurred during the marriage” to be marital property. To protect your non-marital assets, it is imperative to consult with a Canton property division lawyer as early in the process as possible.
A court will not simply take a spouse’s word that something should be considered separate property. The court makes the initial presumption that all assets are marital property unless a spouse can prove otherwise. Proving that something is a non-marital asset is done through “tracing.”
Tracing can be complicated and difficult without an attorney. The asset should be well-documented that it falls into one of the categories of separate property, such as it was purchased before the marriage, was a gift, or was inherited.
As previously stated, the court will divide marital property equally unless it would be inequitable. If the equal division of marital property is inequitable, then the court of common pleas makes the determination as to what would be fair.
As a base, the court starts with the premise that each spouse is considered to have contributed equally to the “production and acquisition of marital property.” Therefore, it does not matter if one spouse contributed more income than the other during the marriage or that an asset is owned by one spouse (unless it is separate property).
To determine what would be equitable, each spouse must disclose all marital and separate property. This includes any debts, income, assets, or expenses that can be attributed to the spouse.
In cases where the court feels that a spouse has engaged in financial misconduct or willfully failed to disclose assets or liabilities, it may compensate the harmed spouse with a distributive award or greater award of marital property.
If you suspect that your spouse is concealing assets or debts or has engaged in fraud, you need an attorney. A Canton property division lawyer can help you understand your rights including the right to a fair and equitable distribution of marital property.
While Ohio law goes into great detail about how assets will be divided during a divorce, there is relatively little said about how debt is distributed. A court has discretion in how they divide marital debt and will decide what is equitable between the spouses.
The equitable distribution of debt may be an equal division between both parties, but it does not have to be. If the court determines that an equal distribution of debt is inequitable, it will make the decision on what would be fair.
Needless to say, the division of debt can be just as frustrating and heavily disputed as the division of property in a divorce. The best way to ensure that debt is divided fairly is by retaining an experienced Canton property division lawyer.
Spousal support is determined to separate and apart from the division of marital property. It is designed to provide sustenance and support to the spouse after the marriage is terminated. An equitable award is not considered part of spousal support and is not a part of the payments that may be ordered by the court.
The division of assets and debts is one of the most debated aspects of a divorce. When parties disagree about how property should be divided, the court must step in to make an equitable distribution. If you and your spouse are able to agree on how property should be divided and you both want a divorce, Ohio allows you to file for a dissolution of marriage.
A dissolution will still legally terminate your marriage, but it is often less expensive and faster than a traditional divorce. A dissolution of marriage is filed jointly by both parties and must have a separation agreement, signed by each spouse, attached to it. The separation agreement must contain information about how marital property will be divided.
If you are considering filing for divorce, legal separation, or dissolution of marriage in Canton, Ohio, contact our office at (330) 968-2547. All initial consultations are FREE and confidential. Let us help you and your family protect your assets and your future. Call now to discuss your case with a Canton property division lawyer at no cost and without obligation to retain our services.
At Slater & Zurz, our Canton, Ohio, family law attorneys have been helping people for over 30 years. We know what it takes to handle even the toughest cases and win. Get the experience you need so you can get the results you deserve. Call now to get started.