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.
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.