May 30, 2015
Divorce and Inheritance Issues in Ohio
Written by Erb Legal LLC
The complexities of married life in Medina, Wooster and North Canton, Ohio, may pale in comparison to the issues that arise when a once-happily married and coexisting couple files for divorce. The division of a divorcing couple’s property, both real and personal, frequently out distances all other issues when it comes to adding to the emotional turmoil and litigiousness of the process of ending a relationship that both spouses usually acknowledge ended long before the divorce proceedings began.
The death of a relative of one of the spouses years before the commencement of divorce proceedings could, and quite often does, lead to protracted bickering during property division negotiations. This is due, in part, to the fact that Ohio is an equitable distribution state.
Equitable Distribution – Equitable Might Not be Equal
Section 3105.171 of the Revised Code is the Ohio equitable distribution statute. During divorce proceedings Medina, Wooster and North Canton, if the parties cannot reach an agreement on how their real and personal property should be divided, either of them may request that the court hearing the case make the decision. The law confers jurisdiction to the court over all property in which either of the parties has an interest. Only Social Security benefits are excluded.
Unlike community property states in which property owned by spouses is divided equally regardless of ownership interest in the property, Ohio courts divide property equitably after first determining which property is marital and which is separate.
Equitable distribution is not necessarily equal distribution. The distribution is left to the discretion of the court to act in accordance with the unique facts and circumstances that exist in each case. The statute provides a recommendation of the factors courts should consider in rendering a decision. The factors include:
- Duration of the marriage
- The assets and liabilities of the parties
- Property liquidity
- Desirability of retaining an asset intact or retaining an interest in an asset
- Tax consequences of property division
- Retirement benefits of each spouse
- Any other factor the court finds to be relevant and equitable
The fact that the law in Medina, Wooster and North Canton gives judges the authority to base the division of property on such other factors other than those in the statute as judges deems important gives the broad discretion when deciding what is equitable under the circumstances of a particular case. This is one reason why a settlement negotiated by the attorneys representing each of the parties can be superior to one forced upon them by a judge.
Marital and Separate Property: Inheritance Issues
Under equitable distribution in Medina, Wooster and North Canton, property owned by the spouses is either marital or separate. The following items are classified as marital property:
- Property or an interest in property acquired during the marriage including retirement benefits
- Income and appreciation in value of separate property attributable to the contribution of either or both of the spouses in the form of labor, money or in-kind contribution during the marriage.
Separate property includes real and personal property falling into any of the following categories:
- An inheritance received by one spouse during the marriage
- An interest in property acquired by a spouse prior to the date of the marriage
- Income or appreciation in value of separate property occurring during the marriage that is not attributable to the labor, monetary or in-kind contribution from either spouse
- An interest in or ownership of property occurring after a legal separation
- Property declared to be separate property in a valid prenuptial agreement
- Gifts of property acquired during the marriage that are clearly designated for only one of the spouses
As much as it might appear as though an inheritance would be the separate property of the spouse to whom it was left by bequest, devise or descent, disputes may arise during a divorce. Section 3105.171 (A) (b) adds a wrinkle by providing that commingling separate property with marital property might destroy its identity. Maintaining the ability to trace the source of the inherited property with evidence during a divorce could be critical in convincing a judge to treat it as separate property and not marital.
Commingling Property in Medina, Wooster and North Canton
Depositing an inheritance into a joint account maintained with a spouse could lead to a severe financial loss in a divorce. Although Ohio law says that commingling does not on its own destroy the separate nature of the inherited property, the party claiming it to be separate in a divorce proceeding has the burden of proof. This could be a difficult task with a joint account where funds were deposited and withdrawn during the marriage. Identifying withdrawn funds as marital property while keeping the inherited funds separate could be impossible to prove.
Another example of commingling inherited property with marital property unfortunately occurs all the time. A person inherits some money from the estate of a deceased relative and uses it as a down payment to purchase a home with a spouse. If the parties were to divorce in the future, the spouse who received the inheritance might be able to prove the amount of it that went toward the purchase of the home. Under those circumstances, a judge in Medina, Wooster and North Canton might be persuaded to designate the amount of the down payment as separate property.
Protecting an Inheritance in a Divorce
The key to protecting an inheritance as separate property in a divorce is to maintain records to be used to prove its separate identity. Married individuals who receive an inheritance should speak to an attorney about steps that could be taken to protect its identity as separate property.