Character of Property
Before an Ohio court can split property in a divorce, it must first distinguish between the separate and marital property of the spouses. Ohio courts typically only divide marital property. In general, marital property is property acquired by either or both spouses during the course of the marriage, regardless of how the property is titled. The family home and vehicles are common examples of marital property, since these items are usually purchased after a couple marries. In contrast, separate property is property acquired by one spouse before the marriage or through inheritance or gift during the marriage. For instance, if a spouse owned rental property before getting married, that property is considered his separate property and not divisible in divorce.
Commingling Separate Property
In a divorce, spouses usually retain ownership and control of their separate property. However, spouses may lose this right if their separate property has been commingled -- or mixed -- with marital property to such an extent a court can no longer tell the difference between the two. For example, suppose a husband sells the rental property he owned prior to marriage and deposits the proceeds into a joint checking account shared with his wife. Unless the spouse can later trace funds in the joint account to their separate property source, an Ohio court is likely to treat the entire account as marital property and divide the funds between both spouses.
States follow one of two distribution schemes when dividing property in divorce: community property and equitable distribution. Community property states, such as California, divide marital property equally between spouses; however, only a handful of states follow this method. Ohio, like the majority of states, follows the equitable distribution method. Under this standard, courts divide marital property in a manner that is deemed to be fair and just, though not necessarily equal. However, divorcing spouses can avoid this uncertain outcome by reaching a marital settlement agreement on their own, in which they decide how property will be allocated between them.
When couples are unable to reach agreement on property division, Ohio courts will step in and make the decision for them. When making an equitable distribution of property, Ohio courts must evaluate several factors, all of which are set forth in Section 3105.171 of the Ohio Revised Code. These factors include the duration of the marriage; each spouse's assets, liabilities and retirement benefits; liquidity of property; tax consequences of any potential distribution; the desirability of granting the family home to the spouse awarded custody; and any other factor the court finds relevant.