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Separate versus marital property in divorce

One common source of confusion for many people who are considering divorce is what the law counts as marital property. You may believe that forgoing joint ownership (houses, bank accounts, etc.) will keep your finances and your spouse’s separate under the law in the event of divorce. However, it is not simply a matter of whether an asset is in one or both spouses’ names.

Instead, Ohio uses an equitable division basis for deciding who gets what property. As part of that, the judge considers how and when you or your spouse acquired an asset, then deems each asset as either separate or marital property.

Separate property

Ohio law stipulates that certain property is not part of the marital estate. Ohio calls this “separate property.” The judge typically allows separate property to remain with the spouse it belonged to, with certain exceptions. One example of separate property is a house that you purchased before you married your spouse, and which continues to remain in only your name.

In some cases, even property gained during the marriage may count as separate, such as an inheritance gifted to only one spouse. This might be money that your great-grandmother left to you, a house that your parents-in-law left to your spouse and so on.

Marital property

Conversely, most types of income or property you acquired during the course of your marriage are marital property under the law. Except in very limited circumstances, such as with an antenuptial agreement, marital property may include assets such as a business you own and run or a house you bought after getting married, even if your spouse has never participated in, co-owned or helped pay for those things with you. What may come as an even bigger surprise is that retirement accounts may be part of the marital estate, despite many people’s expectations that this type of property will remain separate.