Division of Assets and Liabilities

General Rules:

Ohio law makes a distinction between “marital property” and “separate property.”

In Ohio divorce and dissolution cases, the court is required to divide the marital property equally. If an equal division is not fair for any reason, then the court must divide the property in a manner that is equitable.

When considering the division of assets and liabilities, each spouse is considered to have contributed to the production and acquisition of marital property equally.

An equitable division of property shall be made before spousal support (aka alimony) is considered and must be made without regard to a child support award.

In determining whether an asset or debt is marital, the court will consider the period of time between the date of marriage and the date of the final divorce or dissolution hearing.

How title is held does not determine whether property is marital or separate.

Property divisions are generally not subject to future modification. In other words, once a final decision is made regarding the division of assets and debts, it cannot be changed or modified by the court.

Commingling of separate property with marital property not destroy the identity of the separate property, except when the separate property is not traceable.

The court may order that property be sold or encumbered, and may direct the distribution or use of the proceeds generated by said sale or encumbrance.

Marital Property:

Marital property can generally be defined as all property, real or personal, which is currently owned by either or both of the spouses, or in which either or both spouses have any interest, and was acquired by either or both spouses during the marriage.

Income or appreciation on separate property due to either or both spouses’ labor, monetary or in-kind contributions, is also marital property.

Participant accounts, including money deposited therein during the marriage and income derived from the investment of those moneys during the marriage, are also marital property.

Separate Property:

Separate property is property which is not marital.

Examples of things that constitute separate property:

  • Any property acquired by one spouse prior to the date of the marriage.
  • Inheritance by one spouse during the marriage.
  • Passive income and appreciation acquired from separate property by one spouse during the marriage.
  • Any property acquired by one spouse after a decree of legal separation.
  • Any property excluded from marital property per the terms of a valid prenuptial agreement.
  • Compensation to a spouse for that spouse’s personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets.
  • Any gift that is proven by clear and convincing evidence to have been given to only one spouse.

Putting a Value on Assets and Debts:

In any divorce or dissolution case, it is important to determine the current value of all assets and the current balance of all debts. Sometimes, outside professionals need to be retained for this purpose. Appraisers are occasionally hired to determine the current value of real estate or personal property items. CPAs or business valuation experts can be very helpful in certain situations. When either spouse has a pension or similar plan, a pension evaluation expert is often retained to calculate the present value of the plan.

Dividing and Distributing the Property:

In making an order for the division or distribution of property, the court must consider all of the following factors:

  • The duration of the marriage.
  • The assets and liabilities of the parties.
  • The desirability of giving the marital home to the spouse with custody of the children.
  • The liquidity of the property to be distributed.
  • The economic desirability of retaining an asset intact.
  • The tax consequences of the property division.
  • The cost of sale if it is necessary that an asset be sold.
  • Any voluntary/agreed upon division of assets.
  • Any other relevant factor.

Distributive Awards:

If, for some reason, a division of marital property would not be equitable or fair, the court has the right to make an award out of non-marital assets in order to make the overall division more equitable. As an example, the court may award a lump sum payment of cash from one spouse to the other in an effort to make the overall division of assets and liabilities more equitable.

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