Central Ohio Property Division Attorneys
In every divorce, dissolution, and legal separation, property must be divided. The parties must account for all assets and debts titled in either or both spouse’s name. The court must make orders allocating those assets and debts in the decree. This process starts with filing an affidavit, which discloses to the court all known assets and debts, whether marital or separate. Every party to a divorce, dissolution, or legal separation must file this affidavit. If the parties can agree on how to divide the assets and debts, this information can be provided to the court, which will help bypass many of the typical procedures. However, some couples cannot agree on how to accomplish a fair division or do not even know where to begin to unravel their financial affairs. Our attorneys are well versed in the law and legal requirements for division of marital estates.
How does the Court decide how to divide all our property?
In Ohio, the division of assets and debts is controlled by statute. The law says that all marital property must be divided equally unless doing so would be inequitable. The law also requires the court to consider both spouses to have contributed equally to the production or acquisition of marital property. Often, this means drawing a distinction between “marital property” and “separate property.” It also requires the parties to engage in valuing the assets they have acquired, which may involve experts and appraisals.
What is the difference between marital and separate property?
Marital property is any real or personal property owned by either or both of the spouses acquired during the marriage. It does not matter how the property is titled or what form it is in. The definition also extends to “interests” in any property (including retirement benefits or participant accounts). Income and appreciation on separate property due to the labor, monetary, or in-kind contribution of either or both of the spouses during the marriage is also within the definition of marital property.
So what does that leave? Separate property could be any one of the following: (1) inheritance; (2) property acquired before the marriage; (3) passive income and appreciation on separate property; (4) property or interests acquired after a legal separation; (5) property or interests excluded by a valid prenuptial agreement; (6) personal injury proceeds (with some exceptions); and (7) gifts to one spouse, shown by clear and convincing evidence.
A common issue that needs to be accounted for is commingling. Sometimes spouses mix their separate and marital property and destroy the separate nature of it. Other times commingling will not destroy the identity of separate property, because the separate property can be traced. These lines are often difficult for spouses to define. It can be even more difficult to prove. Our attorneys are well versed in the evidentiary standards for tracing separate property.
When might the Court decide an equal division of marital property is “inequitable”?
Sometimes, the Court will decide to allocate property or debts in a less than equal manner. One situation where that may be warranted is if the tax consequences of dividing a property will nullify any benefit either or both of the spouses might receive. Another example where this may happen is if there has been financial misconduct by one of the spouses. This can be difficult to prove, as there are specific requirements to demonstrate financial misconduct.
I think my spouse is hiding assets from me. How can I find out what we have?
In every legal proceeding, the parties undergo a “discovery” process. In a divorce, this requires both sides to disclose the existence of all assets and debts and provide documentation of those items. If your spouse is still not disclosing everything or fails to provide appropriate documentation, our attorneys are experienced in issuing subpoenas for missing documentation and taking depositions to discover the truth. We also have relationships with experts who can help trace the finances and create an accurate picture of the marital estate.
How does property division affect spousal support?
The law requires the Court to equitably divide the marital property prior to making an award of spousal support. The law also requires the court to divide the property without regard to any spousal support awarded. However, when making a spousal support award, the court is required to consider the retirement benefits of the parties and their relative assets and liabilities.
Some of my retirement account was earned before I got married. Will I have to split the whole thing with my spouse?
That depends on whether the portion that was earned prior to the marriage can be “traced.” If the Court is presented with enough evidence to determine the value of the separation portion, it can order a division of only the marital portion and exempt the rest from division. It is important that you consult with an attorney about the appropriate way to trace your separate property interests.
My spouse and I own a business together. Will we have to sell the business?
There are several factors the court must consider when deciding how to allocate the property. In a situation where the spouses own a business together, the court will consider the economic desirability of keeping that asset intact, the tax consequences of dividing the equity in the business, and the costs of sale. Depending on the circumstances, the court may or may not require a sale of the business. Often, the parties do not want to sell the business, because it makes more economic sense for at least one of them to continue operating it. Other times, they agree it would be best to sell the business to a third party so they can both move on. If one party wants to continue operating the business and “buy out” the other spouse, it may be necessary to engage a business valuation expert to estimate the cost of doing so or how much could be obtained from a third-party sale.
If property division is going to be an issue in your divorce, dissolution, or legal separation, it is imperative that you consult with an attorney who is knowledgeable in the legal definitions and requirements for proper characterization and tracing. Our attorneys are equipped with the experience, knowledge, and dedication to help you determine a fair and equitable division of the marital estate. Call our Columbus, Ohio office today at (614) 567-3031 to schedule an appointment. If you hire us, we will credit your account with the cost of the initial consultation.