If you and your spouse are divorcing and unable to agree on how your property will be divided between the two of you, a judge will decide for you based on current statutes. Because Ohio is an equitable distribution state, your property may be split equally between you and your spouse, meaning you will each get 50% of the assets.
However, in some situations, although a 50/50 division of property may be equal, it may not be equitable. In those cases, the judge will consider various factors to determine who gets what. Also, depending on the circumstances, the judge may make a distributive award, which we will discuss later.
Marital and Separate Property
During the initial divorce process, you and your spouse must disclose all marital and separate property, including assets, debts, income, and expenses. The court will review the information to determine what is marital property and what is separate property.
According to Ohio law, marital property is anything that was acquired during the marriage. For the most part, "during the marriage" includes the date of the official marriage until the final divorce hearing. However, if dividing property based on those dates does not result in an equitable distribution, the court will select dates that would result in greater fairness.
Marital property includes:
- Real and personal property
- Interests of real or personal property
- Income and appreciation of separate property if such occurred because of the labor, money, or contributions of one or both spouses
- Participant accounts
Generally, it does not matter whether one or both spouses obtained the property or assets. If it was acquired during the marriage, the court deems that both spouses contributed equally to it and will split it fairly.
Typically, separate property includes anything one spouse owned or acquired before the marriage. However, in some cases, the court will consider separate property to be marital property if one spouse's contributions during the marriage increased its value.
In Ohio, separate property includes:
- An inheritance
- Real or personal property acquired before the marriage
- Personal injury award (excluding loss of marital earnings or expenses paid with marital assets)
- A gift given to only one spouse
Usually, separate property will be returned to the spouse who acquired it. But, depending on the circumstances, the court may decide to distribute it between the spouses. If that happens, the judge must provide a written justification for their decision.
Factors Considered When Dividing Property
As mentioned before, generally, the court will divide property equally, but it may award a greater share to one spouse.
Many factors determine how property will be distributed, including:
- The length of the marriage
- The assets and liabilities of each spouse
- The child custody rights of each spouse
- The liquidity of the property
- The tax consequences of the division
- The costs of selling the property to create equitable division
- The premarital agreement entered into by both spouses (if any)
- The retirement benefits of each spouse
- Any other relevant factors
In some cases, the court may make a distributive award. This is when separate property that is not considered marital property is divided between the spouses.
A distributive award may be made when:
- Doing such creates an equitable division of property (when dividing marital property would be "impractical or burdensome");
- One spouse falsified, concealed, destroyed, or failed to disclose financial information during the initial divorce process; or
- One spouse willfully failed to completely disclose all property, assets, debts, and income during the initial divorce process
Handle Your Case with a Skilled Attorney
Because marital property may or may not be divided 50/50 and separate property may be split between spouses, it's beneficial to have an attorney on your side who can help you understand Ohio's laws and your rights. At L. Patrick Mulligan & Associates, LLC, our Dayton attorneys have over 50 years of combined legal experience and can effectively guide you through the process.
Schedule a free initial case evaluation by calling us at (937) 685-7006 or contacting us online.