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Property Division

Getting a divorce is complicated, primarily because of the emotional ties that are slowly being broken. Dividing up your property is a very tangible way of representing the dissolution of a marriage, and that’s exactly why it can be so difficult.

At The Farrish Law Firm, L.P.A., our Cincinnati attorneys understand all the stress that accompanies a divorce. We know that property division is an essential—but complicated—part of the process, and we’re here to help.

What is “property”?

Under Ohio law, “property” includes almost everything in your tangible estate. It includes retirement accounts, real estate, automobiles, cash on hand, bank accounts, interests in businesses, debts, and a handful of other assets.

In a divorce, each item of property owned by either spouse is classified as “marital,” “separate,” or “mixed.” How an item of property is classified dictates how it is distributed.

Marital Property

  • Marital property includes property acquired by either spouse during the marriage. It also includes income and appreciation generated during the marriage from property owned before the marriage by just one party.
  • An example of marital property is a car you purchase during the marriage using money that can be specifically traced back to you during or before the marriage. Even though your spouse did not financially contribute to the purchase of the car, it’s still considered marital property because it was purchased during the marriage.
  • The specific definition of marital property is outlined in Ohio legislation, but the court still has the final say in what is considered “marital property” in each specific case.
  • The time period specified as “during the marriage” is defined as the period from which the marriage legally began to the date of the final divorce hearing or the date of a final action for legal separation. The court has the ability to change the definition of “during the marriage” in specific cases where these two dates would represent an unfair or unequal distribution.

Ohio legislation dictates that marital property is divided equally; this is often called a “50-50” division. If equal division of marital property would be grossly inequitable in some way, the court maintains the ability to divide the property in a way that results in an equivalent distribution of property ownership and assets.

Separate Property

  • Separate property, under Ohio divorce law, is disbursed to its owner. This means it is not divided between both spouses.
  • During a divorce proceeding, property determined to be “separate property” will not be divided, but will instead be allocated to the spouse who has maintained or acquired ownership during the marriage.
  • The following types of property are typically defined as “separate property”:
  1.     Traceable inheritances
  2.     Traceable premarital property (property owned by one spouse prior to the date of marriage)
  3.     Traceable “passive” income and appreciation from pre-marital or separate property
  4.     Property acquired after the date a decree of legal separation is filed, or which is excluded from marital properties by a prenuptial agreement
  5.     Compensation for personal injury or claims for lack of consortium, if traceable
  6.     Gifts received by a spouse during the marriage, but only if they can be proven by clear and convincing evidence to have been intended to benefit only the one recipient and not both spouses
  • If an item could fall under the category of “separate property” but cannot definitively be traced back to one source (i.e., one spouse), the court may choose to place the property under the category of marital property.

Mixed Property

  • Mixed property is considered to be partially marital and partially separate when you are going through a divorce proceeding.
  • For example, say that you owned a bank account prior to your marriage and you continued to deposit money into this account during your marriage:
    • If you had $50,000 in this account before legally entering your marriage, and if ownership of this money could definitively be traced back to you and only you, this $50,000 could be considered separate property.
    • But let’s say that you add another $20,000 to the account after getting married, and that you do not withdraw any of the funds that were deposited prior to the marriage. Regardless of whether you deposited the additional $20,000 with “your own” money or if you and your spouse each contributed money, this $20,000 will be considered marital property. The court will assume that you were responsible for depositing $10,000 and your spouse was responsible for depositing $10,000.
    • The collective $70,000 in the account is now considered mixed property in the eyes of the court.
  • The $50,000 that is considered to be separate property would be given to you, while the $20,000 considered to be marital property would be divided equally between you and your spouse.
  • Again, this depends on some factors: your ability to show proof of ownership prior to your marriage, and whether or not this method of dividing the property would result in a fair distribution for both you and your spouse. If it is deemed grossly inequitable, the court can choose to divide up the mixed property in a different manner.

If it is possible to argue that certain property is separate, individuals often attempt to provide proof of ownership rather than allow the property to be considered marital. If separate property cannot be attributed definitively to one spouse, the court can choose to pursue a fair distribution between both spouses.

Additionally, one spouse may choose to forfeit his or her right to claim ownership of separate property. Ohio law does not require that separate property be given to one spouse if he or she wishes to divide this property equally; however, the court has the final say regarding property distribution in any divorce case. If a couple wishes to seek a less formal way of dividing property, mediation is a viable option.

The Burden of Proof

It is crucial to emphasize that the party seeking to show that property is separate has the “burden of proof.” This means if you are trying to claim that a certain property is separate and not marital, you are required to prove to the court that it belongs solely to you. If you cannot definitively trace the property ownership back to yourself alone, the court has the ability to label it as marital property and distribute it equally.

Whether separate property is “commingled” with marital property is not dispositive. For example, if you owned a house prior to the marriage but sold it during the marriage and deposited the proceeds into a joint bank account, the property would be commingled. This means it is possible to prove that the commingled property should be considered separate as opposed to marital. This, however, can make ownership harder to trace. It is important that you provide your attorney with all documentation regarding money or other assets you would like to argue are your separate property, such as bank account statements.

How the Court Divides Property

Where separate property is concerned, the court will only divide this property between both spouses if:

  1. Allocating 100% of the separate property would create a gross inequitable division of property ownership and assets between the two individuals; or
  2. If the claimant of this property cannot provide definitive proof that he or she is legally considered the sole owner

When property falls under the category of marital property, Ohio courts will assume that both spouses contributed equally—even if this contribution was not entirely financial— and therefore the marital property should be divided as equally and fairly as possible. The division of property in a marriage—especially when this property is deemed to be marital property— is complicated because contributions are not always entirely financial.

We know it sounds very complicated…

Which is why the Cincinnati, Ohio, property division attorneys at The Farrish Law Firm, L.P.A. are here to help. If you would like more information on what Ohio legislation says about property division during a divorce, be sure to contact our legal team today.