When a divorcee first hears that Ohio is an “equitable property” state, their impression might be that this means marital property is divided equally between a divorcing husband and wife in Ohio. However, “equitable division” actually refers to what the court believes is a fair distribution of property between the two parties after taking a number of factors into account. Everything you acquire during your marriage is subject to division. It doesn’t matter whose name or money was used to purchase that piece of property.
First, it is important to identify marital assets owned by both spouses and assign a value to them, then to categorize the assets as marital or non-marital property.
The following are generally NOT considered marital property in Ohio:
1. Property acquired by gift, legacy or descent (this includes any inheritance)
2. 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
3. Property acquired after a judgment of legal separation
4. Property excluded by valid agreement of the parties (such as certain property listed in a pre-nuptial agreement)
5. Property obtained by judgment awarded to a spouse from the other spouse
6. Personal injury settlements or awards
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 woman–the court may compensate the offended spouse with a sum equal in value. This could be an award of a lump sum or fixed amount payable over time or it could mean a greater award of marital property.
The following factors are generally taken into consideration when dividing marital property:
1. Duration of the marriage
2. 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
3. The reasonable opportunity of each spouse for future acquisition of capital assets and income
4. Obligations arising from either party’s prior marriage(s)
5. Any pre-nuptial or post-nuptial agreement of the parties
6. The age, health, occupation, amount and sources of income and the vocational skills, marketable skills, debts, and needs of each party
7. The tax consequences of each spouse regarding the division of marital property
8. The liquidity of any property to be divided
During a divorce in Ohio, it is a good idea to open separate bank accounts and close all joint accounts. Until all accounts are separated, have a formal written agreement about the activity on any joint account. If you plan to continue any joint accounts, have a written agreement about how funds are to be used and require both parties’ signatures 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 that are subject to the Employment Retirement Security Income Security Act (ERISA) must be divided when divorcing through the filing of what is known as a Qualified Domestic Relations Order (QDRO).
Ohio Revised Code Section 3105.171 defines the equitable division of marital and separate property and answers further questions about division of marital property in Ohio during divorce.
At Slater & Zurz LLP, our experienced Ohio divorce attorneys work closely with clients in order to ensure their financial interests are protected during divorce and the division of marital property. If you would like additional information about divorce in Ohio and the division of marital property and how to resolve any marital debt, please call us at 1-888-534-4850 for a free consultation.
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