I'm trying to figure out who is likely to get what during our divorce, but I'm unclear as to what type of property typically falls into which category.
Divorce / Separation Lawyer
In the U.S., there are two systems that govern marital property: community property and common law (also called marital property). Community property states are Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin. Common law governs the remaining states.
In community property states, whatever you bring into the marriage or receive individually through gifts or inheritances remains yours, but whatever you earn or acquire during the marriage is co-owned by both parties, regardless of who earned it or whose name is on the title. But, if you commingle gift or inheritance cash with a joint account, it very likely the court will consider it community property.
In common law states (like Ohio), if your name appears on the ownership document, registration or title, you own it. But, common law holds that your spouse has legal right to claim a fair and equitable portion of your property in divorce.
In Ohio, “marital property” is defined as:
• All real and personal property that currently is owned by either or both of the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;
• All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage;
• All income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage;
• A participant account of either of the spouses, to the extent of the following: the moneys that have been deferred by a continuing member or participating employee and that have been transmitted to the Ohio public employees deferred compensation board during the marriage and any income that is derived from the investment of those moneys during the marriage; the moneys that have been deferred by an officer or employee of a municipal corporation and that have been transmitted to the governing board, administrator, depository, or trustee of the deferred compensation program of the municipal corporation during the marriage and any income that is derived from the investment of those moneys during the marriage; or the moneys that have been deferred by an officer or employee of a government unit and that have been transmitted to the governing board during the marriage and any income that is derived from the investment of those moneys during the marriage.
Marital property does not include separate property. “Separate property” is defined as all real and personal property and any interest in real or personal property that is found by the court to be any of the following:
• An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;
• Any real or personal property or interest in real or personal property that was acquired by one spouse prior to the date of the marriage;
• Passive income and appreciation acquired from separate property by one spouse during the marriage;
• Any real or personal property or interest in real or personal property acquired by one spouse after a decree of legal separation;
• Any real or personal property or interest in real or personal property that is excluded by a valid antenuptial agreement;
• Compensation to a spouse for the spouse’s personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets;
• Any gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse.
The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable.
Ohio is not a community property state, however, in divorce in Ohio the court defers to rules akin to community property. Generally everything acquired during the marriage will be divided 50-50. If you want to claim something is separate property you will have to prove its separate property. Generally that will be property you came into the marriage with or property you acquired by gift of inheritance (provided you have not commingled the property in which case there would be tracing issues).
While you may be able to handle the divorce yourself, you really should seek the advice of a Family Law attorney familiar with Ohio law.
The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice
I loved Attorney Hilton-Rorar's answer. I have written on this matter, as well, in guides i published here and have attached a link below.
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