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Ohio Property Division
Property Distribution Laws in Ohio
In Ohio the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the property is divided by the Court of Common Pleas within the Judgment of Divorce.
Factors in Equitable Distribution
An equitable distribution state, Ohio uses the dual classification model, and the appreciation of separate property is separate. When spouses are unable to reach a settlement, the Court of Common Pleas distributes the marital assets between the two spouses in an equitable fashion. Equitable does not mean equal, or even half, but rather what is deemed by the Court of Common Pleas to be fair.
Property acquired during the marriage is subject to distribution. In Ohio, "during the marriage" means the period of time from the date of the marriage through the date of the final hearing for divorce or for a legal separation. However, if the court determines that using either or both of these dates is inequitable, the court selects dates that it considers equitable. In that case, the phrase "during the marriage" means the period of time between the dates selected by the court.
In dividing marital property and deciding whether to make a distributive award (money one spouse pays to the other in lieu of property, if dividing the actual property would be too difficult or undesirable), the court considers a variety of factors.
In dividing the marital estate, the court, guided by the Ohio Code - Sections: 3105.171, considers:
Marital Property vs. Separate Property
Both spouses are considered to have contributed equally to the production and acquisition of marital property. Therefore, Ohio law requires that marital property must be divided equally, unless such a division would be inequitable. In such a situation, the court must divide the property equitably instead of equally.
Marital property includes personal and real property acquired and owned by either spouse or both together; active appreciation of separate property due to one spouses contributions, such as improvements; and participant accounts in state and municipal deferred compensation plans, to the extent set forth in the applicable statute.
Separate property includes an inheritance to one spouse during the marriage; property acquired by a partner before the marriage; passive income and appreciation acquired from separate property during the marriage; property acquired by one spouse after a decree of legal separation; property excluded from the couple's marital property by a premarital agreement; a spouse's personal injury compensation, except for loss of earnings during the marriage and compensation for expenses paid from marital assets; and any gift given to only one spouse.
Separate property stays separate, even if it is mingled with another type of property (such as marital property), unless the separate property is not traceable back to its source.
Valuing and Dividing Property
Some assets have a readily ascertainable value, such as a bank account, publicly traded stock, and other liquid assets. If the spouses cannot agree on the value of assets, however, the court must decide the value. The value of assets such as homes, cars, jewelry, pensions and retirement accounts may be determined by obtaining expert appraisals.
Appraising a private business can be difficult. In those situations, it is usually necessary to retain accountants and other experts. This process can often be costly and time consuming. Unless the parties agree to accept the value determined by one expert, the court makes a decision based on evidence and testimony.
First, the court classifies assets and liabilities, property and debt, as marital or separate. Then it assigns a monetary value to the marital property and debt. Finally, it distributes the marital assets between the two parties in an equitable manner.
The Marital Home
In Ohio, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.
From there, couples choose one of three options to divide the equity:
Pensions and Retirement Accounts
Retirement benefits, including IRA's, 401-K plans, pensions, and deferred compensation, are considered marital property and subject to division by the court to the extent that they were acquired by either or both of the spouses during the marriage.
In Ohio vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.
Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.
In Ohio the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:
In Ohio if spouses share in each others retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.
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