Property division and distribution is the most litigated part of divorce proceedings. If you are thinking about divorcing your spouse or are in the process of obtaining a divorce, you might wonder what property is a marital asset and what will remain yours.
Divorces are already an emotional, stressful period so having an idea of what will remain your separate property may bring you some peace of mind.
What is separate property?
The majority of states, Ohio included, apply a dual property system to assets involved in a divorce, classifying them as marital or separate. The Ohio Revised Code defines separate property as real and personal property or any interest in those properties that a court determines fits into one of several categories. This includes inheritance gifted during the marriage, passive income and appreciation from separate property, compensation for your personal injury and any property excluded by a valid antenuptial agreement.
Separate property is also any property you acquired before the date of your marriage and any property you obtained after your decree of legal separation. Any property gifted to you after the date of the marriage is also separate property as long as you have clear and convincing evidence it only belongs to you.
As long as your separate property is traceable, commingling with other types of property will not affect its classification.
In your divorce proceedings, your separate (or nonmarital) property will remain with you as the owner.
When is it not equitable to return everything that belongs to you?
Sometimes a court will determine that it is not equitable to return everything that belongs to you, even if it is separate property. For example, if you own two cars and your spouse has custody of your child, the court may grant your spouse one of your cars.
In your divorce, the court will attempt to divide the marital assets and separate property as equally and equitably possible.