Difference Between Marital and Separate Property
During a divorce, there is a process for dividing assets. The Court is required to identify all assets and their current values. This includes properties such as homes, cars, pets, boats, jewelry, furniture, computers, businesses, bank accounts, life insurance policies, stocks, bonds, and retirement accounts, to name a few. As a general rule, the net value of each asset is split 50/50 between the divorcing couple.
Ohio Revised Code Section 3105.171 is the Ohio Statute that addresses the division of property and distinguishes between what is considered to be marital property and what is considered to be separate property.
Section 3105.171 of the Ohio Revised Code is extremely difficult to interpret. For example, some people bring assets with them into a marriage. As long as those assets and their values can be proved to be separate property, that property will remain the property of the person who brought it into the marriage.
The key to this aspect of Ohio Law is that a person requesting that a particular asset be deemed a separate non-marital property must be able to prove it at the time of trial by being able to trace through the documentation that established the property as non-marital. A further complication is when separate property is brought into the marriage. Still, during the length of the marriage, the separate property became marital property through co-mingling of the assets.
If the Court feels that either spouse has engaged in financial misconduct during the divorce litigation, the offending spouse could be ordered to pay more than 50 percent of the marital assets as punishment for the misconduct.
In Ohio divorce law, property in a divorce, whether it is real property or personal property, is generally divided between the parties by a simple formula:
- Any property that the couple obtained together during the marriage is divided 50/50;
- In a short-term marriage, separate property that was brought into the marriage will go back to whoever brought it into the marriage;
- In a more lengthy marriage, even separate property that one individual brought in may still be considered marital property and divided 50/50.
- If you keep the property and money is still owed on it, you pay for those liabilities.
Of course, this formula has many variables, which is one of the many reasons it’s in your best interests to have an experienced divorce lawyer who knows how to negotiate divorce property settlements. For example, in the case of the marital home, primary considerations include:
- Where the children will reside;
- Who can best pay the mortgage;
- What is the equity of the home;
- Whether or not the home will be sold;
And many more.
Other specific pieces of personal property may have their own rules, such as family heirlooms, inheritances, animals, tools, and many more. It takes a trained legal professional with many years of experience to recognize each property issue and work with each one appropriately.
Dividing Debt and Liabilities
Marital debts are also generally divided 50/50, but there are several other ways that debt division can go.
For instance, a credit cardholder will often have to pay off a credit card in his or her name. The same may be true of other unsecured debts, depending on the circumstances. If a debt goes with a piece of property, like a car, whoever keeps the property will need to pay off the debt attached to that piece of property.
Dividing Tax Liabilities
The tax consequences of a divorce can be very complex, especially if there are children or if a business, investment, or other variable is involved.
Once again, having an experienced divorce attorney on your side who understands the tax consequences associated with every aspect of a divorce can be beneficial to your future.
The Long-Term View
The division of property and debt in a divorce has long-term consequences for everyone concerned. We take a long-term view toward this process.
We are highly skilled and experienced in the following:
- Savings and checking accounts
- Property settlement agreements
- Tax Issues
- Real estate property
- Second homes/vacation property
- IRAs, 401ks, and other retirement accounts
- Dissolution of the family business
- Complex property division
- Inheritance and family heirlooms
Dividing assets and liabilities in a divorce can get complicated and cumbersome. Our experienced divorce lawyers help guide clients through this process while protecting their best interests and ensuring they are treated fairly and in accordance with Ohio Laws.