There is a presumption that property is subject to an equitable division unless otherwise stated in a prenuptial agreement. Marital property can be all real and personal property that is currently owned by either of the spouses, including but not limited to, retirement benefits, real estate, personal property, bank accounts, income and appreciation on separate property due to the labor or in-kind contribution of either or both souses, cars, etc. Martial property is specifically defined in case law and O.R.C. 3105.171(A)(3)(a). Separate property is not subject to an equitable distribution. Separate property is also defined by caselaw and O.R.C. 3105.171(A)(3)(a)(6). Separate property means all real and personal property that was acquired prior to the date of marriage, passive income and appreciation acquired from separate property during the marriage, property acquired after the date of decree of legal separation, property that is excluded by a valid prenuptial or antenuptial agreement, compensation to a spouse for the spouses personal injury (except for loss of marital earnings and compensation for expenses paid from marital assets), certain gifts, and inheritance,
Generally speaking, “equitable division” is considered to be an equal division of the property. However, the court does not have to divide the property evenly if one party proves financial misconduct.
An accurate property valuation date will be necessary to ensure that you receive an equitable distribution of assets and that you are protected as much as possible. The valuation date is articulated by the court’s local rules, unless it would be unjust to follow those rules. When the valuation of certain property is not easily obtainable, it will be necessary obtain a professional report and/or examination to determine the date. This is a very fact specific issue and each case is different.
Further, in addition an equitable distribution of property, the court will order an equitable distribution of debt. Debts that are incurred during the marriage are presumed to be marital and will be subject to the aforementioned distribution. Ohio law does not outline a method of the division of debt and therefore a Judge or Magistrate may exercise his or her discretion in distributing the debt based on the facts presented.
Spousal support is a fact sensitive analysis and is determined on a case by case basis. Ohio case law states that spousal support shall be “reasonable and appropriate. To determine if there is an award for spousal support and the award amount, the court will the following into consideration: the relative earning abilities of the parties; the ages and the physical, mental, and emotional conditions of the parties; the retirement benefits of the parties; the duration of the marriage; the extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home; the standard of living of the parties established during the marriage; the relative extent of education of the parties; the relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties; the contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party; the time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought; the tax consequences, for each party, of an award of spousal support; the lost income production capacity of either party that resulted from that party’s marital responsibilities; any other factor that the court expressly finds to be relevant and equitable.
If spousal support is awarded it can be left up to the continuing jurisdiction of the Court. The court can modify and/or terminate spousal support if the receiving party “cohabitates” with another, death of the paying party, or other related facts which would warrant a modification.
Retirement benefits that were acquire during the marriage will be subject to an equitable distribution under Ohio Law. Pensions, defined contribution plans, 401(k)s, IRAs and countless other retirement mechanisms are subject to different tax treatment and different requirements. To divide these plans there needs to be additional orders such as Qualified Domestic Relations Orders and Division of Property Orders, which are filed with the court then sent to the retirement provider directly.
Certain plans have added complexities and nuances such as Military retirement plans, Government retirement plans, and certain Union plans. It is important to hire an experienced attorney to ensure that you get what you are entitled to, or in the alternative, to protect what you have worked hard for you entire career.
It cannot be stressed enough that divorces involving members of the military and their families should only be handled by attorneys who are experienced in these matters. Military divorces contain complex asset and custodial issues that are not present in a normal divorce case.
Under the Service Members Civil Relief Act courts can delay divorce proceedings and other court issues while a member of the military is deployed or on active duty. It is important to understand how this act applies to you can and affects the timing and procedures.
Determining an equitable distribution of a military pension is easily the most complex aspect of a military divorce. These pensions have extensive rules and regulations that govern when a spouse and receive their benefits. There is an added difficulty in accurately valuing the benefits and navigating the bureaucracy of the military.
Further, other considerations such as TRICARE, and Commissary Exchange Privileges should be discussed so that former spouses understand their rights and entitlements after a marriage ends.
The outcome of a business division can have a significant effect on both parties. This involves complex asset allocations and likely will require valuations and testimony from expert witnesses. We work with a network of business valuation specialist to ensure that your rights in the business is protected.
A prenuptial Agreement is a contract between two parties prior to getting married. The prenuptial agreement articulates each parties’ rights and obligations in the event a divorce or dissolution occurs. Under Ohio law, there are specific requirements to make a prenuptial agreement enforceable or valid. These requirements are a hybrid of domestic relations and contract law. These can include, but are not limited to, having the agreement reduced to writing; supported by adequate consideration; both parties must make a full disclosure of their assets, finances, and liabilities.
A prenuptial agreement protects a parties right to property, retirement, property that may be awarded to children from previous relationships, spousal support, finances, and inheritance. Prenuptials are not just for individuals who have a lot of assets. Further, contrary to belief, a prenuptial is not for individuals who are betting that a relationship fails. It is for individuals who are conscious of their assets and want to take affirmative action to protect what they have worked hard for.
Gray divorce is a term currently used to refer to the wave of baby boomers that are moving forward with a divorce. Research shows that are are several reasons why this is occurring and that it is occurring at a higher rate.
Gray divorces have a different impact on the individuals than a divorce between couples in their twenties. Those who are in their fifties and older likely have had decades to accumulate wealth together from real property, personal property, retirement, and other such assets. Thus, asset allocation can be more complex. Further, these individuals are closer to retirement age and thus asset allocation becomes vitally important to protect their standard of living.
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