Ohio Divorce Attorney: An Equitable Split Does Not Necessarily Mean An Equal Split
One of the biggest divorce myths we encounter in our practice is the belief that the divorce court will add up all of each litigants property and divide down the middle. This method is used in a minority of states (Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington and Wisconsin). These states are called “Community Property” states. In Ohio we follow a different model called “Equitable Distribution.” Simply stated, equity is about the fairness of the property division. It is up to you and your attorney to fight for the most fair and equitable property division that you can obtain.
One of the first jobs you and your attorney must complete is to identify what property is “marital property” and what property you believe to be your “separate property.” Ohio Revised Code 3105.171(A)(6) defines separate property is any of the following:
- Property a party owned before marriage, and passive income or appreciation on that.
- Property a party acquired during the marriage by gift or inheritance.
- Any property or interest on property acquired by one spouse after decree of legal separation.
- Any property or interest that is excluded by a valid prenuptial agreement.
- Compensation for personal injury, except where award compensates for wages or other marital property lost.
- Any gift given during the marriage that may be proven to have been intended for one spouse only.
You should help your attorney show that the property you claim to be separate is traceable. As long as separate property is traceable it can remain ‘separate’ even if combined with any other category of property. The most common example is a pre-marital bank account, or an inheritance, that is deposited in a joint bank account or used for a down-payment on a home. Your attorney may be able to successfully argue that the holding of title to property by one spouse individually or by both spouses in co-ownership does not determine whether the property is marital or separate.
Marital property is defined at Ohio Revised Code 3105.171(A)(3). In general, all property acquired during the marriage is marital property, such as:
- A home if purchased with earnings of either or both parties during the marriage.
- A pension plan, to the extent accrued during the marriage.
- A bank or financial account, if built during the marriage with funds earned during the marriage by either party.
- Increases in value of separate property due to the labor, monetary contributions, or other contributions of the parties during the marriage
- A participant account (a deferred compensation plan for certain Ohio public employees), and any income derived from the investment of this money during the marriage.
“During the marriage” means whichever of the following is applicable: (a) the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation; or, (b) if the court determines that the use of either or both of the dates specified above would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, “during the marriage” means the period of time between those dates selected and specified by the court. In making a division of marital property and in determining whether to make and the amount of any distributive award, the court shall consider all of the following factors: The duration of the marriage; The assets and liabilities of the spouses; The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage; The liquidity of the property to be distributed; The economic desirability of retaining intact an asset or an interest in an asset; The tax consequences of the property division upon the respective awards to be made to each spouse; The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property; Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; and Any other factor that the court expressly finds to be relevant and equitable.
Contact Jamie L. Anderson at (937) 318-1384 to schedule a free consultation about your divorce case today. Jamie and her team of divorce attorneys, financial analysts, detectives and litigation experts can help you through a simple dissolution or complex divorce litigation. Jamie practices in Greene, Warren, Montgomery, Miami and Clark Counties. When there is so much on the line, call someone with the credentials to win your case. 879-9542.
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