When a couple divorces, the court will divide their marital property equitably. Below, you'll find some answers to frequently asked questions about Ohio property division. For all of our articles about divorce in Ohio, see our Ohio Divorce and Family Law page.
What is the standard for dividing property in Ohio?
Each spouse is considered to have contributed equally to the production and acquisition of "marital property." Therefore, Ohio law requires that marital property (defined below) must be divided equally, 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 currently owned by either spouse or both, and that either or both acquired during the marriage (this includes retirement benefits)
- any interest of either spouse or both in any real or personal property, and that either or both acquired during the marriage (again, this includes retirement benefits)
- all income and appreciation on either spouse's separate property, due to the labor, financial, or in-kind contribution of either or both of the spouses that occurred during the marriage (unless an exception applies), and
- participant accounts in state and municipal deferred compensation plans, to the extent set forth in the applicable statute.
Marital property does not include either spouse's separate property, as described below.
What does "during the marriage" mean?
"During the marriage" means 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. However, if the court determines that using either or both of these dates would be inequitable, the court may select dates that it considers equitable in determining marital property. In that case, "during the marriage" means the period of time between the dates selected by the court.
What is separate property?
Separate property is property that is not marital property, but is instead owned separately by either spouse. It includes any real or personal property (or any interest in such property) that falls into these categories:
- an inheritance by one spouse by bequest, devise, or descent during the course of the marriage
- 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
- property acquired by one spouse after a decree of legal separation
- property that is excluded from the couple's marital property by a valid antenuptial agreement
- compensation to one spouse for that spouse's personal injury, except for loss of earnings during the marriage and compensation for expenses paid from marital assets, and
- any gift of 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.
Separate property remains separate, even if it is mingled with another type of property (such as marital property), unless the separate property is not traceable back to its source.
How does the court divide marital property?
In dividing marital property and deciding whether to make a distributive award (money one spouse pays to the other in lieu of property, if dividing the actual property would be too difficult or undesirable), the court must consider all of the following factors:
- the length of the marriage
- the assets and liabilities of the spouses
- 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
- the liquidity of the property to be distributed
- the economic desirability of retaining an asset or an interest in an asset intact, rather than dividing it or its value
- the tax consequences of the property division on each spouse
- the costs of sale, if an asset will have to be sold to equitably divide the property
- any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses
- the retirement benefits of the spouses (except Social Security), and
- 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, and other liquid assets. 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, and so on, 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 can be difficult to properly value. In those situations, it is usually necessary to retain the services of accountants and other experts to do financial evaluations. This process can often be costly 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 a professional 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 they were acquired by either or both of the spouses during the marriage.