Family Law AdvisorŪ
Frequently Asked Questions

What is the standard for dividing property in Ohio?

Each spouse shall be considered to have contributed equally to the production and acquisition of "marital property." The laws of the State of Ohio require that the division of "marital property" must be equal, unless such a division would be inequitable. In such a situation, the court must divide the property equitably instead of equally.

What is "marital property?

" "Marital property" means, all of the following:

• All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

• All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;

• Except as otherwise provided, all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage;

• Participant accounts in state and municipal deferred compensation plans, to the extent set forth in the applicable statute.

• "Marital property" does not include any "separate property."

What does the term "during the marriage" mean?

"During the marriage" means whichever of the following is applicable: (a) the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation; or, (b) if the court determines that the use of either or both of the dates specified above would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, "during the marriage" means the period of time between those dates selected and specified by the court.

What is "separate property?

" "Separate property" means all real and personal property and any interest in real or personal property that is found by the court to be any of the following:

• An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;

• Any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage;

• Passive income and appreciation acquired from separate property by one spouse during the marriage;

• Any real or personal property or interest in real or personal property acquired by one spouse after a decree of legal separation;

• Any real or personal property or interest in real or personal property that is excluded by a valid antenuptial agreement;

• Compensation to a spouse for the spouse's personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets;

• Any gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse.

• The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable.

How does the court determine how to divide the marital property?

In making a division of marital property and in determining whether to make and the amount of any distributive award, the court shall consider all of the following factors:

1. The duration of the marriage;

2. The assets and liabilities of the spouses;

3. The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage;

4. The liquidity of the property to be distributed; The economic desirability of retaining intact an asset or an interest in an asset;

5. The tax consequences of the property division upon the respective awards to be made to each spouse;

6. The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property;

7. Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses;

8. Any other factor that the court expressly finds to be relevant and equitable.

How does the court determine the value of a marital asset?

Obviously, some assets have a readily ascertainable value, such as a bank account, publicly traded stock, etc. If the parties can not agree on the value of other assets, there must be a determination of the value in order for the court to be able to make an informed determination. The value of assets such as homes, cars, jewelry, etc., can be determined by obtaining appraisals from qualified experts. The value of pensions and retirement accounts may also be determined from an evaluation. Assets such as the value of a business, is often more troublesome. In those situations it is usually necessary to retain the services of accountants and other experts to do financial evaluations. This process can often become relatively expensive and time consuming. Unless the parties agree to accept the value determined by one expert, the court will have to take evidence and testimony and make a determination based upon the evidence as to the value of the property.

Is a professional license or degree an asset subject to valuation and division?

No. Although other states have ruled otherwise, Ohio has determined that the license or degree is not an asset subject to division. The future value of a professional degree or license earned during the marriage is, however, a factor to be considered by the court when making a determination with regard to spousal support.

What about retirement accounts, pensions and other deferred compensation?

The retirement benefits of the spouses, including IRA's, 401-K plans, pensions, deferred compensation, etc. are considered marital property and subject to division by the court to the extent that it was acquired by either or both of the spouses during the marriage.

-- The Law Offices of Dennis P. Levin

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