Ohio Divorce: Dividing Property

If you're 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 debts?

Is Ohio a Community Property State?

No. Courts in Ohio follow the equitable distribution model when dividing assets and debts during a divorce. 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, the judge will consider a set of factors 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.

Agreement Between Spouses or Equitable Division

You have the first say in how you would like to divide your marital property. 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. States have two options when dividing property: the community property method or equitable distribution.

What Is Marital Property?

Before the court can divide property in a divorce, it needs to know what property belongs to the couple, what belongs to either spouse separately, and how much there is of each. Generally, marital property is all property acquired during the marriage. Typical marital property may include a home, personal property, bank accounts, and retirement benefits. (Ohio Rev. Code. Ann. § 3105.171 (A)(3).)

A common question in divorce is "who gets the house?" or "will I get to keep my retirement benefits?" The answer isn't a simple one. The court must evaluate a series of factors (see below) before deciding how to divide all marital property.

What Is Separate Property?

Separate property is any property you owned before marriage. It also includes gifts or inheritances that you received during the marriage and most personal injury awards. There are circumstances, however, when the court considers income from separate property or an increase in the value of your separate property as marital property. (Ohio Rev. Code. Ann. § 3105.171 (A)(6).)

For example, if you had a condo before marriage that either spouse managed as a rental during the marriage, then that rental income is likely marital property, because it comes from a spouse's efforts during the 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 contribute equally to all the marital property they acquire during the marriage. At divorce, the court divides the marital property equally between the spouses unless an unbalanced result is more equitable. The court can include either spouse's separate property, too. (Ohio Rev. Code. Ann. § 3105.171 (C)(1).)

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 the title of the vacation home to your brother in anticipation of divorce just to keep it out of the 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. Factors the court may consider include:

• the duration of the marriage
• each spouse's assets and liabilities
• if you have children, whether the custodial parent would benefit from remaining in the marital home
• the liquidity of the property
• the tax consequences of property division to each spouse
• the costs of the sale of property
• whether the couple executed a premarital agreement concerning property division
• retirement benefits of each spouse, and
• any other factor the court deems necessary to ensure a fair division. (Ohio Rev. Code. Ann. § 3105.171 (F).)

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.

In Ohio, the court treats marital debts 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. (Ohio Rev. Code. Ann. § 3105.18.)

Before you file for divorce, consider speaking with an experienced family law attorney in your area.

More Information & Sources

Learn about property division and other issues in an Ohio divorce at our resource section on Ohio Divorce & Family Law.

You can read the law on the division of property and spousal support in the Ohio Revised Code Sections 3105.171 and 3105.18, respectively.

If you have questions about your own case, speak to a local family law attorney for advice.