Who Gets What: Division after Divorce

By July 8, 2019divorce

Marriage is as much an economic union as it is a romantic or spiritual one. In Ohio, couples who divorce must divide their marital property. There are many complications when it comes to divvying up a couple’s assets.

For example, the couple might disagree about whether certain assets are marital or separate property. Generally, each spouse leaves the marriage with his or her separate property, while marital property must be divided.

If you have questions about what marital property to request, you should meet with a Columbus divorce attorney for a consultation.

What to Ask for in a Divorce

First, you should identify marital assets. Ohio’s statute on the division of marital property is ORC 3105.171. Generally, if you acquired property while married, then it is marital, even if you used only one spouse’s income to buy it. Separate property is anything you brought into the marriage or an asset you inherited or received as a gift while married. If you received something as a gift, it must have been intended only for you, not for you and your spouse to jointly share.

Here are common marital assets:

  • Homes
  • Vacation homes
  • Retirement accounts
  • Investment accounts
  • Motor vehicles
  • Cash in a checking or savings account
  • Wages earned by either spouse while married
  • Jewelry
  • Art works

Not all of these assets are equivalent, so you need to think carefully about what you request. Consider your home, for example. You might dread moving, so you decide to ask for the house. But you need to keep in mind all the work required when owning property:

  • You’ll need to pay to insure the home in the event of fire or other natural disaster
  • You’ll need to pay for regular home maintenance
  • You need to pay for big repairs, like a new roof or new heater

These costs can add up; in the end, you might come out further behind if you take the home. By contrast, asking for a retirement account could be more cost effective.

Am I Entitled to Half My Husband’s Business?

No, you probably aren’t “entitled” to half the business. However, you might get some or all of the business. Let’s look at a few factors.

First, is the business marital property? Your spouse might have started the business while single, in which case it is separate property. The amount that the business grew in value while married will probably be considered marital, but not all is marital if your spouse started it before marriage.

Second, you are entitled to an “equitable” amount of marital property. Equitable means “fair,” which might be 50/50 or it might not be. Usually, if both spouses have roughly equal earning power and separate property, then marital property will be divided 50/50. But there are situations where a judge divides it differently.

Third, you might get 50% of the marital property but not necessarily 50% of every asset. All marital property goes into a pot and is valued; you then might get 50% of the total amount. So if the business is worth $300,000 but your home is also valued at $300,000, then a judge might give you the house while your husband keeps the business.

Judges are leery of dividing businesses, because divorced spouses probably cannot work together effectively. You should meet with an attorney to discuss your situation.

Is My Husband Entitled to Half of My House?

When did you buy the home? If you bought it while single, then it is separate property. Of course, if the home increased in value while married, then your husband could be entitled to some portion of that increase in value.

Here is a common situation: a wife buys a home while a single woman and takes out a 30-year mortgage. A few years later, she gets married and her husband moves in. While married, the couple continues to pay down the mortgage, so the value of the home increases. When the couple divorces, the home now has more equity in it than it did when they first got married. In this example, the husband is probably entitled to some portion of the increase in equity.

Who Gets to Stay in the House during a Divorce?

A couple can reach an agreement themselves to decide which one stays in the house. They can also agree to both move out. It is up to them.

However, couples often cannot agree. In that case, they need a judge to award temporary possession of the home to one of them. Usually, judges will award possession to the parent who has custody of the children, because judges don’t want to force any dramatic change on kids. However, if you don’t have children, then a judge will look at other factors.

Am I Responsible for My Spouse’s Debt after Separation?

It matters when your spouse incurred the debt as well as whose name is on the debt. Let’s run through some common scenarios:

  • You cosigned a loan. In this case, you absolutely are legally responsible for the debt, regardless of when your spouse took it out.
  • The debt was put on a joint credit card. You are responsible for the debt.
  • Your spouse took out the debt after separating. In this case, you generally are not responsible for debt payment.

Who Gets the House in a Divorce with Children?

Usually, the parent with custody gets to stay in the house. However, we need to be clear. You might be able to stay in the home, it does not mean you own the home outright. Instead, you might be allowed to stay in the house until the children graduate high school. When they move out, you probably must sell the house and divide the proceeds with your ex. In the meantime, you and your ex will probably split the cost of repairs and upkeep.

There are also some situations where the parent with custody won’t stay in the house:

  • The parent with custody doesn’t want to stay in the house.
  • The parent with custody wants to move.

Talk with an Ohio Divorce Attorney for Advice

If you are divorcing, you need to approach marital division of assets carefully. We have seen some people end up with fewer assets than they otherwise could have gotten because they did not carefully plan which assets to request.

Contact Lawrence Law Office today to schedule a consultation with a family law attorney.

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