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Divorce

What Is the Difference Between Marital Property and Separate Property in Ohio?

By December 26, 2022December 27th, 2022No Comments

Divorces are hard. The emotional turmoil combined with legal obligations creates a perfect storm of stress and anxiety. The division of assets and property alone is enough to make a person feel overwhelmed by the process. Fortunately, property division has a solid set of rules in Ohio. Assets, both tangible and intangible, can be separated peacefully and professionally. By learning about these rules, and what will be expected from you during the divorce process, you can alleviate some of your worries and plan for your future. What follows is what you can expect from a division of property following an Ohio divorce.

Equitable Distribution

Ohio courts follow the equitable distribution model when dealing with property division during a divorce. This is the model that most U.S. states follow. Basically, it orders that property does not have to be separated equally but, rather, equitably. In short, it must be a fair distribution. The court begins by assuming that both spouses contributed to the marriage equally and are therefore entitled to fair shares of the marital property. Even in cases where one spouse was the sole breadwinner, the court takes the position that the other spouse contributed in other ways. Child rearing and homemaking are considered just as important and necessary to a marriage as providing income and assets. Operating on this assumption, a judge will follow a set of guidelines for distributing the property. It should be noted, however, that the couple can agree to a fair settlement themselves.

Agreement Between Spouses

Divorce does not mean that your assets are automatically divided by a judge. Couples can agree to a division that meets both of their needs as long as the court approves. A separation agreement is an official document in which the two divorcing spouses divide their property however they want. They have complete control over the distribution. As long as the document is not woefully unfair, and as long as both parties enter into the agreement unforced and of their own volition, the court will approve their version of the divide. It is only when spouses cannot agree or can only agree on most things but still have certain assets in dispute that the court must become involved to distribute items equitably. Couples can often save time and money by working with lawyers or arbitrators outside of court to solve disputes.

Marital Property

So if the couple cannot agree on a separation agreement, the court must follow the equitable distribution model to divide their assets. To do that, the court must determine what is marital property and what is separate property. As a general rule of thumb, marital property is any asset bought or contributed to during the marriage. This will include tangible assets like the home and the cars and intangible assets like bank accounts and retirement plans. No two divorces are exactly alike because no two relationships are exactly alike. The court will use a series of factors that are specific to the divorcing couple to come to an agreement on which assets will be considered marital property.

Separate Property

Separate property is considered anything you owned before the marriage or any gifts or inheritance you received during the marriage intended only for you. There are instances, however, where property owned before the marriage may be considered marital property instead. For example, if you rented out your “bachelor pad” and collected rent during your marriage. This income can be considered marital property because it comes from your efforts during the marriage. However, assets you owned before the marriage, which may have increased in value during the marriage, can remain separate property if the increase was not due to your labor. For instance, if your “bachelor pad” was in an up-and-coming neighborhood and its value increased along with the other rentals around it, that added value would be considered separate property. As you can see, the rules pertaining to separate and marital property are complex and dependent upon many factors. No two cases will be exactly alike.

Factors For Determining Property Division

The court will consider many factors when dividing marital assets. Which factors will be more relevant than others will be argued over by your legal team. The factors the court will consider are as follows:

  • How long the couple was married
  • The personal assets and debts of each spouse
  • Whether children are involved and who will retain custody
  • The cost of the sale of property
  • The retirement benefits of each spouse

If you are concerned about property division following your divorce, call Garretson & Holcomb, LLC at (513) 863-6600. We can answer your questions and provide insight into what to expect for your future.