Franklin County OH Divorce Lawyer | Separate Property

Virginia Cornwell is an Ohio Family Lawyer in Columbus, Ohio and an Ohio State Bar Association Certified Family Relations Specialist. She helps clients throughout Ohio and accepts cases from all 88 Ohio Counties.

What is community property in Ohio? We get that question a lot from our divorce clients. The truth is, there is no community property in Ohio because Ohio is not a community property state. Ohio law uses the term “marital property”. Naturally, the next logical question would be “Okay, so what is considered marital property in Ohio?” The answer is simple. Everything is considered marital property in Ohio unless you can prove that it is separate property.

SEPARATE ASSETS

So what is separate property in Ohio? Ohio Revised Code 3107.171 governs property division during a divorce, legal separation or dissolution. (There is no property division in an annulment because the marriage is invalidated.) That statute defines separate property as being any real property (real estate) or personal property (every kind of property EXCEPT real estate) that a court finds to be one of these things:

An inheritance by one spouse
Any property that was acquired by one spouse before marriage
Passive income and appreciation from separate property. “Passive income” means income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse.
Any property acquired by one spouse after a decree of legal separation issued under section 3105.17 of the Revised Code;
Any property excluded by a valid antenuptial agreement (prenuptial, aka a “prenup”) ;
A personal injury award, (except for loss of marital earnings)
Any gift that is made after the marriage and is proven to have been given to only one spouse

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MARITAL ASSETS

So if property doesn’t fall under the category of separate property, then what is it? The answer is MARITAL PROPERTY. Ohio is not a community property state. Ohio law presumes everything is marital property until the party asserting the claim of separate property PROVES IT. If you cannot prove that something is separate property, then it is marital property, subject to division by the court in a divorce, dissolution or legal separation. The same law that defines separate property in Ohio defines marital property. Ohio Revised Code 3105.171 says that the following types of property are marital:

All property currently owned by either spouse, including, retirement benefits and deferred compensation, that was acquired by either during the marriage;
All interest that either spouse currently has in real or personal property, including retirement benefits and deferred compensation, that was acquired by either during the marriage;
All income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either spouse during the marriage;
“Marital property” does not include any separate property.

Sounds simple enough, doesn’t it? Not so fast. In our next article about marital and separate property we’ll talk about the burden of proving separate property, “tracing” separate property, and what happens when separate property is “transmuted”, or becomes untraceable.