You may have heard the expression that marriage is betting someone half of your stuff that you will love them forever. In the beginning, that sounds doable, because you are in love. If you consider the difficult decision to get divorced, you are going to do a lot of research to find out how you may be splitting property in divorce. If you have questions about pets, retirement accounts, inheritance, debt, and the impacts of cheating, stay tuned.
Aside from being concerned about the change in family dynamic, one of the most common questions from our clients and potential clients is “Is all property is split 50/50 in a divorce?”
The Short Answer: No.
Before we get into the long answer, let’s define separate property and joint or marital property.
- Separate property is property that you individually own. Generally, this would be property that you own before the marriage, or property which is gifted to you with the intent that you alone will own it.
- Joint/marital property is property you and/or your spouse acquired while you are married. This includes any property/assets that are bought and any income/profits which are earned. There are many exceptions to what is or is not marital property though, so talking to a good family law attorney can provide clarity.
Back to the burning question at hand: Is everything split 50/50 in a divorce?
And now, the Long Answer:
In a divorce in Ohio, property will be divided fairly and equitably. Sometimes this looks like an equal 50/50, and other times it doesn’t.
Ohio is an Equitable Distribution state. This means that only property deemed marital property will be subject to division during a divorce. The courts will focus on the division being fair and equitable rather than just simply equal. Typically, an equal 50/50 division will be fair and equitable, but there are factors that the courts will consider when deciding exactly what that division looks like.
Those factors can be (but are not limited to) the following:
- The value of each spouse’s separate property
- The spouses’ economic/employment circumstances
- The value of the marital property
- The spouses’ monetary/nonmonetary contributions to the marriage
- Whether either spouse has committed financial misconduct (and it can be proven)
- Whether either or both will be caring for the minor children, if any.
Basically, splitting property in divorce can look different in each case depending on the circumstances. The end goal is to divide the marital property fairly and equitably.
“But, what if…
… my spouse cheated on me? Do I get more in the divorce?”
Courts in Ohio do not typically consider misconduct of either spouse during the marriage when determining property distribution. Due to this, even if you have indisputable evidence that your spouse has been cheating on you, that is not going to mean you get the house and the cars and your spouse’s entire 401k in the divorce. In fact, the only misconduct the courts will usually consider when splitting property in divorce is financial misconduct. So, the evidence you want to gather isn’t that your spouse has been cheating on you, but rather that they have been using marital funds from your joint bank account to maintain an extramarital affair.
… my spouse and I agree on how everything is to be split? Do we still need the courts to get involved?”
Another thing to keep in mind is Equitable Division only comes into play when you and your spouse cannot agree on how property will be split in the divorce. If you both can come to a voluntary agreement on who gets what, the court will typically honor that agreement.
… my spouse ran up a lot of debt, and I don’t have any? Does my spouse keep their debt in the divorce?”
Debt is treated like property—there is marital debt and separate debt. Similarly, separate debt will not be divided and will remain the responsibility of the spouse who incurred it. Marital debt, however, is subject to being divided between the spouses upon divorce, considering the circumstances, fairly and equitably.
If loans were taken out during the marriage, whether by one spouse or both, they will likely be considered marital debts if they were used for a “valid marital purpose” or gave a “joint benefit”. A good example would be if one spouse took out a car loan to buy the family minivan. Even though the loan is in the one spouse’s name, the loan was ultimately used to purchase something which benefited the marriage and therefore is likely a marital debt.
… I inherited money after we got married? Can my spouse get half of my inheritance?”
Inheritance is your individual separate property regardless of whether you receive it before or after getting married. However, if the inheritance, or any separate property for that matter, becomes comingled with marital property to the extent that it is no longer indistinguishable, that separate property may become marital.
This is most often seen when inheritance is monetary. For example, if you receive a check for $10,000 as your inheritance, that money is separate property when you receive it. If you then use that money along with some marital funds to buy your dream car, you have now comingled assets and your dream car may be subject to division in a divorce.
When it comes to inheritance, the best option is to keep clear records and separate that property from any marital assets as much as possible.
… I put money into a 401k from my paycheck? Are retirement accounts divided in divorce?”
Retirement accounts are unique in that they can be both separate and marital property. Any retirement account you own and any balance it had prior to marriage is your separate property. As soon as you get married however, any marital funds added to the account are considered marital and subject to distribution. This applies if your employment takes x amount of dollars from your paycheck each month to contribute to your retirement plan, since your income is considered marital property, a portion of your retirement account is now also considered marital property.
… we have family pets? Pets are treated like children in divorce, right?”
While we all know pets are absolutely part of the family, under the law in Ohio pets are treated the same as property. Just as any other asset, if you had your pet before the marriage, they are likely to remain your separate property. If you brought your pet home during the marriage, they are going to be considered marital property and subject to division.
Division is where pets are going to differ a little from other assets. Since neither you or your spouse are probably going to want to sell your pet and split the proceeds like you could a house, the court will look to multiple factors to help decide who gets “custody” of your pet:
- which spouse provided the daily care for the pet
- which spouse regularly purchased pet supplies
- which spouse would take the pet to the vet and pay for vet bills / insurance
- which spouse will be more financially able to care for the pet after the divorce
Why do I need an attorney for property division?
You need an attorney for property division because as you might notice while reading this, splitting property in divorce can be very complicated and confusing. If you believe you are entitled to more of a certain marital asset, it is up to you to show the court why. A skilled family law attorney in Ohio can help you determine what facts and records are necessary to not only protect your assets, but also make sure you walk away from a divorce with nothing less than what is fairly and equitably yours.