Ohio Property Division FAQ
When you got married, you never imagined that one day you would be deciding how your property would be divided. You need an attorney who will help you determine what is fair.
On this page, we have provided answers to some of the most frequently asked questions about property division that our lawyers receive from prospective clients.
What is the difference between marital property and separate property?
Marital property is all the property acquired during the marriage, except for gifts and inheritances. This includes retirement benefits, property and financial assets. When facing a divorce, both spouses are entitled to walk away with some portion of these things. Separate property is anything acquired by one spouse prior to the date of marriage or by gift or inheritance during the marriage.
Is Ohio a community property state?
We are NOT a community property state. This means that all property is not automatically divided 50/50 in the divorce. Instead, separate property is not considered, and the standard is fairness.
What does the court look at when dividing property?
A number of factors are considered. The most common are marital property versus separate property, whether one party or the other wants particular assets and the effect of division on the value of the asset.
What if we signed a prenuptial agreement?
The goal of a prenuptial agreement is to avoid any disagreement over assets when facing divorce. A prenup that contains a provision for property division usually takes precedence over any current laws. This is because it was agreed upon and tends to specifically list what property would go to each spouse. It is often difficult to change what is stated in the agreement.
How are retirement assets divided in a divorce?
Not all retirement accounts are divided in the same way. Retirement accounts that are not IRAs will need to go through the Qualified Domestic Relations Orders (QDRO) process. IRAs will instead go through a direct transfer process to divide the contents of the account.
Government pensions such as OPERS, STRS, SERS, Police and Fire, FERS and military retirement pensions are divided by a Division of Property Order (DOPO), or similar type of order, which is a preset form with check boxes for the allowed options and language that cannot be modified or removed.
How does a QDRO work in Ohio?
A QDRO is a court order that dictates how a non-IRA retirement account divides because of divorce. The contents of the benefit can go toward retirement, child support, and alimony or be divided as marital property in the divorce.
If the word divorce is being used in my house, should I stop contributing to my 401(k)?
Any assets that a 401(k) acquires during a marriage will likely qualify as marital property, meaning it will probably be subject to asset division during the actual divorce. However, anything you add to your 401(k) after your divorce is solely your property. It may be possible to pause your 401(k) contributions until after your divorce and catch up with the payments after things are finalized. Consult with your 401(k) provider to confirm if this is possible.
What happens to stocks in a divorce?
In Ohio, stocks that were acquired during the marriage are considered marital assets. This means that both you and your spouse have a claim to them. The court or your respective attorneys will assess the current market value of the stocks and will divide them equitably. This is typically done through stock transfers, although it would also be possible to sell the stocks and split proceeds accordingly.
Can we decide how to divide our property ourselves?
Yes, you and your spouse can decide how to divide your property yourselves. This is often done through direct negotiation or mediation and formalized in a settlement agreement, which outlines how you will split your assets and debts. If both parties agree to the terms, the agreement can be submitted to the court, and judges will generally approve it as long as it is fair and reasonable.
There is always a caveat when considering a do-it-yourself approach to any legal matter, however. Judges expect you to be as thorough and accurate in your submissions as an attorney would be. While you might initially save money by forgoing the help of an attorney, any mistakes or omissions could prove to be costly and time-consuming to fix.
Thankfully, there is a reasonable middle ground between full-service representation and none at all. Our firm offers limited scope representation (LSR), also known as unbundled legal services. This is a hybrid approach that allows you to handle some aspects of the divorce yourself while consulting a skilled attorney for the issues you need help with. LSR can save you money while ensuring that your divorce isn’t delayed or derailed by preventable errors or omissions.
Are debts also divided in a divorce?
Yes, debts incurred during the marriage are also divided in a divorce. Just like assets, debts are considered jointly owned. The court will look at all debts, including credit card bills, mortgages, car loans, student loans and other obligations, and will decide how to divide them between you and your spouse. The goal is to ensure a fair distribution, and that may require a closer look at which spouse ultimately took on the debt and which spouse benefitted from it. We discuss this in greater detail on our asset and property division page.
Have More Questions? Contact Our Firm For Answers.
To discuss your case with one of the experienced property division attorneys at Sowald Sowald Anderson Hawley & Johnson, call our Columbus office today at 380-217-3322 or fill out our contact form. We can help you feel confident about your future. We have helped clients throughout Ohio.
