How Does a Domestic Relations Court in Ohio Divide Property in a Divorce?
If you and your spouse are unable to divide your property via a Separation Agreement in a Dissolution of Marriage or Settlement Agreement in a Divorce proceeding, the Court will need to do it for you. In order divide your property, the Court will go through the following steps.
First, the Court will determine which property is separate property and which is marital property.
Separate property means any of the following: an inheritance received by a spouse during the marriage; any property acquired by a spouse prior to the date of marriage; passive income and appreciation acquired from separate property by one spouse during the marriage; property acquired by a spouse after a decree of legal separation; property excluded by a valid antenuptial (also known as prenuptial) agreement; compensation to a spouse for personal injury (with the exception for loss of marital earnings and compensation for expenses paid from marital assets); any gift made after the date of marriage that is proven to have been given to only one spouse. Moreover, in order to be awarded a spouse’s separation property, he or she must be able to trace the property to its separate source.
Marital property means any of the following: any property owned by either or both of the spouses that was acquired during the course of the marriage unless it falls into one of the categories of separate property; all income and appreciation on separate property that occurred during the marriage as a result of labor, money, or in-kind contributions.
Once the Court has determined which property is marital and which is separate, the Court will divide the property equitably between the spouses. Usually this means an equal division of marital property and an award of the separate property to its respective owner. However, if the Court determines this would not be an equitable outcome, it can divide the marital property in an unequal fashion and award a spouse’s separate property to the other spouse.
The Court must consider a number of factors when making the property division including: the duration of the marriage; the assets and liabilities of the spouses; the desirability of awarding the family home or the right to reside there for a reasonable period of time to the spouse with custody of the children; the liquidity of the property to be distributed; the economic desirability of retaining intact an asset or an interest in an asset; the tax consequences of the property division; the costs of sale, if it is necessary that an asset be sold; any retirement benefits of the spouses; any other factor that the court finds to be relevant and equitable.
One reason why the Court may decide to award a spouse’s separate property to the other spouse is if it determines that a division of the marital property would be impractical or burdensome. Another reason the Court may award separate property to the other spouse or award a greater than equal amount of marital property would be if a spouse engaged in financial misconduct, like dissipating, destroying, concealing, not disclosing or fraudulently disposing of assets.
As you can see, there is no sure thing in terms of property division in a divorce. Although the presumption is that separate property will be awarded to its separate owner and marital property will be divided equally, there is a lot of room within Ohio law for the Court to order otherwise. In addition, in order to be awarded separate property, you have to be able to show that it is separate by tracing it to its separate source. For these reasons, it is wise to be represented by an attorney.
