Division of most marital assets is easy: For instance, ex-spouses dividing a checking account can close the account, divide the money according to the court order, and then transfer it to their individual accounts. But, dividing the marital home is far more problematic.
First, spouses must transfer title to the home, which often involves retaining counsel. But, many forget that the home’s mortgage loan should be refinanced by the party retaining the home (if the final order calls for it, and it should). This is often difficult (or even, impossible) to accomplish when one spouse is trying to qualify for a mortgage on their own.
Ex-spouses are usually quick to deed the property over to the spouse who is receiving the home and their lawyer usually handles the deed’s preparation and recording. However, the receiving party then applies for a home loan, only to find they do not qualify. Or, if they do qualify, the new loan comes with a much higher payment because the bank is taking on more risk with only one obligor. So the ex-spouse never actually follows through with the refinance – they just contact the mortgage company and ensure all mail goes to their address. Then, payments to the mortgage company continue and no one knows that this issue is lurking.
Fast forward a year or two
The ex-spouse in the home suffers an unexpected financial expense or a layoff from work. They miss a few mortgage payments, the mortgage loan is called due, and collection letters start going out — all to the party in the home, with you knowing nothing of the issue. Up next, a foreclosure is filed. You thought you were free of the mortgage until served with the foreclosure complaint seeking a six-figure judgment against you. What happened?
When you signed the note and mortgage, you made a promise to repay a debt to the mortgage lender. So, absent paying off that loan or reaching a new agreement with your mortgage lender, your mortgage lender is entitled to expect you to repay the debt – with no consideration for the private agreement reached between you and your spouse in a divorce. In fact, your divorce decree is merely an order in place against the ex-spouse. The company that owns your mortgage is under no obligation to follow that court order, since they were very likely not party to the case and had no opportunity to protect their interest in your case. Therefore, your divorce order probably provides you no protection against foreclosure.
The time to fix this issue is not when you receive the foreclosure complaint, but to tackle this issue immediately after divorce by ensuring your former spouse refinances the loan. After divorce, you should first execute and record the deed called for in your decree; that way, there will be no hurdles to your ex-spouse refinancing the mortgage loan. Next, your decree should state a specific time frame to complete, not start, the refinancing process. As soon as that time frame runs, you should obtain paperwork that evidences your original loan’s payoff or send a demand letter to your ex-spouse reminding them of their obligations. If the ex-spouse does not complete the refinancing, you should take immediate action by seeking relief from the court. And, if your ex-spouse simply cannot qualify for a loan, the property should immediately be sold.
The divorce process in Ohio is controlled, in large part, by Ohio statute. Ohio statute also sets forth the residency requirements that dictate when Ohio can legally hear your divorce complaint.
A divorce can be resolved by agreement between the parties. However, if parties are unable to reach an agreement by themselves, they can try their unresolved issue or issues to the court. The court will then issue an order that resolves the dispute between the parties and finalizes the divorce.
There are several ways spouses might be able to separate in Ohio. Generally speaking, though, spouses turn to one of two ways to terminate their marriage: A divorce or a dissolution. See our article on Ways to Legally Terminate your Marriage for additional information on the other ways to terminate a marriage..
Four issues are addressed in most divorces. First, and the issue that must be resolved in all cases, is division of marital property — all marital assets and marital debts. Next, many marriages involve children, which adds two other broad issues for resolution: parenting time and child support. And, finally, spousal support must be addressed when terminating a marriage.
Spouses must be thorough in addressing their issues during divorce to ensure everything is properly dealt with. If an issue is missed, the divorce case may need to be re-opened and begun again to address the missed issue or issues. Although, sometimes, missing an issue forever bars it from consideration by the court, which may cause serious harm
Property division in a divorce first turns on identifying the marital property to be divided, because separate property should be retained by the spouse who originally owned it.
Do you understand the difference between marital property and separate property?
Marital property as defined in Ohio Revised Code section 3105.171 is property owned by either or both spouses and property in which either spouse has an interest in the property that arose during the divorce.
Separate property as defined in Ohio Revised Code section 3105.171 is real or personal property that was inherited, acquired by one spouse prior to the date of marriage, acquired after a decree of legal separation under Ohio Revised Code section 3107.17, excluded by a valid antenuptial agreement, compensation for personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets, or any gift of property that was given to only one spouse.
Ohio has identified a number of reasons that justify a divorce. The reasons are:
(A) Either party had a husband or wife living at the time of the marriage from which the divorce is sought;
(B) Willful absence of the adverse party for one year;
(D) Extreme cruelty;
(E) Fraudulent contract;
(F) Any gross neglect of duty;
(G) Habitual drunkenness;
(H) Imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint;
(I) Procurement of a divorce outside this state, by a husband or wife, by virtue of which the party who procured it is released from the obligations of the marriage, while those obligations remain binding upon the other party;
(J) On the application of either party, when husband and wife have, without interruption for one year, lived separate and apart without cohabitation;
(K) Incompatibility, unless denied by either party.
Even if one of these causes is not readily applicable to your situation, but you still desire the termination of your marriage in Ohio, you should consult counsel. Competent counsel can review your particular fact pattern and identify whether or not Ohio would find your circumstances to support termination of marriage