If you are getting divorced in Ohio, do you know what property you get to keep and what you have to split with your spouse? Who will be responsible for the debt?
Agreement Between Spouses or Equitable Division
You have the first say in how the marital property should be divided. If you can work with your spouse on a separation agreement – a written document that tells the court how you want the property divided between you – then generally, the two of you can control the outcome. If you can’t work with your spouse or if you can decide on some things but there are certain assets still in dispute, then the court will have to divide your property for you, based on a system called equitable division.
An equitable division of your property does not have to be equal, but it must be fair. The court starts by presuming that all of the marital property will be split equally between the spouses. From there, a set of factors will be considered that may result in a shift in the balance from one spouse to the other. Ultimately, the result must be a just distribution that reflects the past efforts and future needs of both spouses.
Separate Property May be Included
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to you or your spouse separately, and how much there is of each. Generally, marital property is all property acquired during the marriage, including retirement benefits. Separate property is property you owned before marriage. It also includes gifts or inheritances that you receive during marriage, and most personal injury awards. There are circumstances, however, when income from separate property or an increase in the value of your separate property will be characterized as marital property.
For example, if you had a condo before marriage that either spouse managed as a rental during marriage, then that rental income is marital property because it comes from a spouse’s efforts during marriage. On the other hand, if you bought an investment property in an up-and-coming neighborhood before marriage and it improves in value during the marriage simply because the rest of the area does the same, then that increase in value remains your separate property.
The court presumes that the spouses contributed equally to all the marital property. At divorce, the court divides the marital property equally between the spouses, unless an unbalanced result is more equitable. The court can include the separate property, too.
You jeopardize your interest in your separate property if you fail to tell the court about all of your property or if you did something to harm the financial interests of the marriage. For instance, you can’t transfer title of the vacation home to your brother in anticipation of divorce just to keep it out of division. That’s a fraudulent transfer, which might cost you your separate property or result in a reduced share of marital property.
Factors Considered in Dividing Property
From a starting point of equal division, the court evaluates all of the assets and liabilities of the spouses to split the marital property equitably. It looks at the liquidity of assets (cash being the most liquid asset and easiest to split up, stocks being among the least liquid), the costs of division, the extent of retirement benefits, and tax consequences. The court also considers the length of your marriage and whether you should receive or have the right to live in the family home if you have custody of the children. If you have a separation agreement, the court will consider that, too, along with any other factors that affect the fairness of the division.
The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, benefits, and even debts. At divorce, debts are treated the same as any other property. Before dividing a debt, the judge will have to characterize it as either marital or separate and then apply the factors above to assign responsibility for it.
Spousal Support Determined After Division
Spousal support is a payment from one spouse to the other to help sustain the recipient spouse after divorce. In Ohio, the court evaluates your need for spousal support after the division of property is complete. You can, however, request temporary support at any time during the divorce process.
Learn more about Spousal Support and Alimony in Ohio.