How is Marital Property Divided in Ohio Divorce Proceedings?

States have varying laws on how they treat and divide marital property in a divorce or dissolution proceeding. Some states are known as common law property states, which hold that property acquired by one spouse during a marriage is owned solely by that person. Other states are known as community property states, which hold that property acquired by one spouse during marriage is owned equally between both spouses. Depending on how a state classifies property obtained during marriage, it will affect how property is shared or separated in a divorce or dissolution proceeding.

Division of Marital Property in Ohio

Ohio is a community property state. Under Ohio law, marital property includes all real and personal property that currently is owned by either or both of the spouses that was acquired by either or both of the spouses during the marriage. This also includes retirement benefits. In deciding how to divide marital property, a court will consider various factors, including length of marriage, assets and liabilities of the spouses, economic desirability of retaining intact an asset or an interest in an asset, and tax consequences.

During a divorce or legal separation, each spouse is required to disclose in a full and complete manner all of that spouse's marital property, separate property, or other assets, debts, income, or expenses. If one spouse fails to fully disclose all property then the court may compensate the offended spouse with a distributive award or with a greater award of marital property not to exceed three times the value of the property that are not disclosed by the other spouse.

Non-Marital Property

Importantly, not all property held by a spouse is considered marital property of the couple. In particular, "separate property" is not included in the definition of marital property. Separate property includes:

  • Inheritance or gifts received by one spouse during the course of the marriage;
  • Property acquired by one spouse prior to the marriage or real or property acquired after decree of legal separation;
  • Passive income and appreciation acquired from separate property by one spouse during the marriage, such as income or rent from property, interest from a bank account, or dividend or interest from securities (stocks and bonds); and
  • Compensation to a spouse for the spouse's personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets.

For gifts of real or personal property to be considered separate property, however, there must be clear and convincing evidence that the gift had been given to only one spouse.

Contracting Around Ohio's Marital Property Rules

There is one more category of property is not considered marital property: property excluded in an antenuptial or prenuptial agreement. A couple may enter into a contract (prenuptial agreement) governing the couple's property rights and economic interests. A couple may enter into a contract to dictate how property should be divided and distributed in the event of a divorce or dissolution proceeding.

Unlike some states, Ohio does not permit a couple to enter into a postnuptial agreement, which is an agreement to separate marital property that a couple enters into after marriage.

Contact a Cleveland Divorce Attorney

If you are going through a divorce or dissolution and have questions regarding how to divide marital property, Laubacher & Co.'s Cleveland divorce attorneys can help. Contact our divorce attorneys today for a free initial consultation.

Prenuptial and Postnuptial Agreements Under Ohio Law

/in Divorce, Marital Agreement /

Before marriage, a couple may enter into a contract governing the couple's property rights and economic interests. These types of agreements are known by several different monikers, including premarital or antenuptial agreements, prenuptial agreements or prenups. Prenuptial agreements can be used to determine how a spouse's property should be disposed upon the death of one spouse. Or, a prenuptial agreement may be used to determine how property will be divided upon a couple's separation or divorce. These agreements may also provide for provisions governing spousal support. A prenuptial agreement can cover as much or as little regarding property rights and economic interests as a couple desires.

Enforceability of Prenuptial Agreements

Importantly, couples thinking about entering into a prenuptial agreement should recognize that specific requirements must be met in order to be valid and enforceable in Ohio. As a matter of public policy, Ohio courts enforce prenuptial agreements; however, because of the unequal bargaining positions that sometimes exist in a relationship, courts will carefully scrutinize them to ensure that one party has not taken advantage of another.

A court will enforce a prenuptial agreement if three basic requirements are met:

  1. If the couple entered into the agreement freely without fraud, duress, coercion or overreaching;
  2. If there was a full disclosure, or full knowledge, and understanding, of the nature, value and extent of the prospective spouse's property; and
  3. If the terms do not promote or encourage divorce or profiteering by divorce.

If these three conditions are met then a prenuptial agreement is valid and enforceable. Furthermore, if a prenuptial agreement is found to be valid, marital misconduct arising after the marriage by either party will not invalidate an agreement.

Postnuptial Agreements Are Not Allowed in Ohio

Postnuptial agreements are the same as prenuptial agreements with the only difference being that the former are entered into after the marriage. Many states permit married couples to enter into these agreements; however, Ohio is not one of these states. Specifically, Ohio law provides:

A husband and wife cannot, by any contract with each other, alter their legal relations, except that they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation.

A married couple may enter into a contract governing a couple's property only if it is done in connection with a legal separation. A legal separation is when a married couple chooses to live separately, but they do not terminate the marriage. The couple may then enter into a separation agreement that provides for child support, division of property, and allocation of parental rights.

Contact an Ohio Family Law Attorney

If you any questions regarding prenuptial agreements, it is an important to reach out to an experienced family law attorney. At Laubacher & Co., we have a team of experienced Cleveland family law attorneys who can help you prepare a prenuptial agreement and answer all your questions. Contact one of our attorneys today for a free initial consultation.

Parental Rights to An Abortion by a Minor in Ohio

/in Child Custody, Family law /

A majority of states throughout the United States have some type of law that requires minors to obtain parental consent before getting an abortion. There are, however, 12 states and the District of Columbia that do not have any laws governing parental consent to a minor's abortion. Ohio is one of the states that does require parental consent.

Abortions by Minors Under Ohio Law

Under Ohio law, an unemancipated minor under 18 must obtain the consent of one of her parents or her guardian before she may obtain an abortion. A minor is considered emancipated if she has "has married, entered the armed services of the United States, become employed and self-subsisting, or has otherwise become independent from the care and control of her parent, guardian, or custodian." Parental consent may be bypassed, however, by petitioning a court.

In 2011, Ohio closed a loophole in the law that allowed minors to bypass the parental consent required for an abortion. Formerly, minors could relatively easy petition the juvenile court of the county where the facility in which the abortion would be performed or induced was located to bypass the parental consent requirement. The revised law, however, struck this provision from the law.

Further, the revised law imposed a heightened standard by which a court may give judicial consent for a pregnant minor to have an abortion. Specifically, the revised law now requires courts to "inquire about the minor's understanding of the possible physical and emotional complications of abortion and how the minor would respond if the minor experienced those complications after the abortion." And, the court must inquire about the extent to which anyone has instructed the minor on how to answer questions and on what testimony to give at the hearing. A court may issue an order authorizing a minor to consent to an abortion, but only if there is clear and convincing evidence that the minor is sufficiently mature and well enough informed to decide intelligently whether to have an abortion. The abortion must also be in the best interests of the minor.

Child Custody Protection Act Introduced Into Legislation

U.S. Senator Rob Portman (R-Ohio) has recently introduced legislation in Congress in order to discourage minors from obtaining an abortion without parental consent. Under the proposed Child Custody Protection Act, it would be a federal offense to take a minor across state lines for an abortion, if it is done to avoid a state's law requiring parental consent for a minor's abortion. The law has been proposed to prevent minors from traveling to one of the 12 states that allow abortions by minors without parental consent.

Portman said that the "legislation simply says that parents have a right to be involved in their kids' most important decisions, a view supported by an overwhelming majority of Americans." The proposed law would provide civil and criminal penalties through fines and imprisonment up to one year.

Contact a Cleveland Parental Rights Attorney

If you have questions regarding parental rights in a minor's abortion or questions generally about parental rights, a Cleveland parental rights attorney can help. The attorneys at Laubacher & Co. have extensive experience providing legal advice on a variety of family law issues, including parental rights, child custody, adoption, and divorce issues. Contact Laubacher & Co.'s Cleveland family law attorneys today for a free consultation.

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