Dividing property in divorce: a short primerFiled under Featured, Property & Financial Matters, Resources
Ohio statutes and case law propose equal division of property as a place to start. The statute says that ‘the division of marital property shall be equal’ unless equal division is unfair –as it may be for a very short marriage– or if it is established that one spouse has engaged in financial misconduct.
There are many individual situations, however, so a court may make adjustments. Some common examples:
Property. When one spouse can document that they acquired property before marriage and show that it remained separate during the marriage, it will be awarded to that spouse, including appreciation in value that did not come from the effort of the owner. It is deemed ‘separate property’.
Pensions. When one spouse has a pension, courts usually order that the amount of the pension earned during the marriage will be divided evenly between the parties at a value determined on the benefit commencement date. Courts are well aware that the value of benefits changes over time. They generally find that for any year during the marriage that a pension benefit was earned, that benefit should be divided based on its highest value.
Learn more about how courts treat pensions in divorce.
Gifts. Gifts given to one party alone remain the separate property of that party. Often there is a dispute over to whom a gift was given. For example, suppose a significant mortgage was forgiven by one spouse’s parents. It may not be clear that this was a gift to one spouse alone. Careful planning is sometimes appropriate so that the donor’s intent is clearly established.
Unique things. Some things simply can’t be divided– the family dog, for instance, or anything unique, such as the family residence. If you cannot agree, as a rule, the court determines which of you receives that item. If it has significant value, monetary or otherwise, the court will award other property to the other spouse to equalize the value. Sometimes, the court orders an item sold, with the proceeds to be divided.