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.
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DISCLAIMER – Read it, it’s important!
Trying to end your marriage in Ohio can be difficult if the wife is pregnant. Difficult, but not impossible.
One reason that Ohio courts will sometimes decline to grant the divorce until the child is born is so that child support will be established. The court does not want the child to go without support for several months while paternity is established and support is ordered through the child support enforcement agency.
However, 
If the parties want to get divorced NOW, and do not want to wait until the child is born, there may be some steps the parties can take to convince the court to approve the divorce.
If the husband and wife know that the husband could not possibly be the father of the baby, they should stipulate to this fact in the divorce decree. The court can then make findings rebutting the legal presumption that the husband is the father and “disestablish paternity” in the divorce decree.
The parties could bring a post decree motion to establish paternity, support and parental rights of the child to the court for filing on the day of the divorce decree, file the motion on the day of their final hearing, and set the first hearing date to occur in front of the same judge a few weeks after the child’s due date. If either of the parties wants genetic testing, they could agree to the manner in which the genetic testing will be done. If the parties use a private service for the testing, they could have the results before they attend their first hearing.
You might wonder how courts can just decide to hold a divorce case open for many months against the parties’ wishes. First, domestic courts have broad discretion. They cannot just do anything they want, but they can do a lot.
The husband valued the receivables using records from 1999. The wife’s expert used the value of receivables in 1998. The husband claimed that the wife’s expert did not use the most recent financial information. However, according to the court, the husband did not provide the most recent receivable information to the wife, nor did the husband have his expert testify, instead relying on an affidavit authenticating the contents of the report. The Appeals Court also noted discrepancies in the 1999 records and the differences in information he provided to the two experts, and used this to support it’s finding that the Wife’s expert opinion was more credible.
Traditionally, valuations are performed at a particular time and as of a valuation date. This case really emphasizes the importance of the two sides agreeing on a common valuation date. Had they agreed that 1998 was the valuation date, the issue of timely data, and discrepancies would never have occurred. The case also shows how the court’s perceived failure to disclose can backfire on the party who has the information advantage, normally the owner spouse.
Finally, the exceptional period in delay from filing to final trial, points out the cost of multiple valuations which can be avoided with a fixed valuation date. Experts are not usually required to update their reports except at an additional cost. Dating the valuation as close to the divorce as possible can avoid the cost of updating the report, but may not reflect the valuation realities of the marital assets.
