USA – OHIO Law and Practice Contributed by: Andrew A Zashin, Amy M Keating, Kyleigh A Weinfurtner and Christopher R Reynolds, Zashin Law
Separate property includes property that was: • inherited by only one spouse during the course of the marriage; • acquired by one spouse prior to the date of the marriage; • acquired from passive income and appre - ciation on separate property owned by one spouse during the marriage; • acquired by one spouse after a decree of legal separation; • excluded from being considered as marital property by a valid prenuptial or postnuptial agreement; • compensation to a spouse for the spouse’s pain and suffering related to a personal injury; or, • gifted after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse. The burden of proof is on the party claiming a separate property interest in any asset to prove such interest by a preponderance of the evidence (a civil evidentiary standard that means some - thing is more likely than not). Parties seeking to assert claims to separate property interests can demonstrate such claims through records that reflect premarital account balances or amounts received as gifts or an inheritance, or other documents evidencing their separate property interests. Ohio law is clear that the commingling of separate property with marital property does not destroy the nature of the separate property, so long as it is traceable. To meet their burden of proof for commingled assets – particularly finan - cial accounts – a party may need to engage an expert witness to utilise an appropriate meth - odology. This is especially true when proving passive appreciation on separate property in a commingled financial account.
After determining whether property is marital or separate, Ohio courts must then divide the property between the spouses. Unless it would be inequitable to do so, Ohio courts general - ly award a spouse’s separate property to that spouse. Ohio law further creates a presump - tion that the courts will divide marital property equally, unless it would be inequitable to do so. Financial misconduct or other factors might impact a court’s decision to fashion an unequal, but equitable, property division. The court must make an equitable division of marital property prior to making any award of spousal support as any income received from the assets being retained by either party can be considered when the court determines the appropriateness of a spousal support award. This is especially true when dealing with income-producing assets. Trusts in Divorce Sometimes one or more of the parties in a divorce proceeding will have created revocable or irrevocable trusts prior to or during their mar - riage. Assets held in revocable trusts are divided like any other property, because revocable trusts can be altered pursuant to the terms of the trust, typically during the lifetime of the spouse who created the trust. Irrevocable trusts, conversely, cannot normally be divided. In fact, assets held in irrevocable trusts are often not treated as mar - ital or separate property, due to the fact that the parties have restricted, if any, direct ownership rights to the property held in the trust. 2.4 Spousal Maintenance Determination of Spousal Support Ohio courts have broad discretion to award spousal support in divorce cases. Tasked with determining whether spousal support is “rea - sonable or appropriate” in a divorce case, judg - es are required to consider all factors they find to be relevant and equitable in determining the
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