In Ohio, marriages can end through divorce, dissolution, or annulment. Legal separations are also granted as part of a possible overall divorce action.
Ohio is both a no-fault and fault-based state, meaning that a couple can simply cite irreconcilable differences, or they can cite specific reasons for a divorce such as adultery, cruelty, abandonment and several other possible causes. Although a no-fault marriage is less stressful and generally faster, spouses often times cite specific reasons in an attempt to gain more favorable settlement terms.
Ohio is an equitable distribution state, and the courts will attempt to distribute assets in a marriage in a fair and equitable way, but this does not necessarily mean that the split will be 50-50. There are several rules governing the division of assets that can impact the final outcome in many ways.
Here are some of the other common legal issues that are good to know about regarding divorces in Ohio:
Ohio is an equitable division state which means property is divided fairly and equitably, but necessarily equally. According to statutes in Ohio, marital property is defined as:
Separate property is not considered marital property and will not be included in a division of assets. Separate property can include inheritances left to one spouse, any real or personal property acquired before the marriage, certain kinds of passive income, any property acquired after a legal separation, any property excluded by a pre- or post-nuptial agreement, personal injury settlements, any gifts that are clearly proven to be given to only one spouse.
A judge will take many factors into consideration when attempting to create a fair distribution of assets in a divorce. Some of these factors may include:
Businesses are also considered marital property, but may be difficult to divide, although still subject to equitable distribution. In cases such as this, it may be possible to award the business to the spouse who is more involved in the business and make up the difference with other marital property going to the other spouse. The same principle holds true for retirement assets.
Some assets have easily determined values, such as bank accounts or stocks and bonds. Other asset valuations may be more difficult, and it might be necessary to retain an expert to help place the appropriate value on one or more assets.
Ohio courts treat debt division on a case-by-case basis. This means that debts may not be assigned equally in a divorce, even if both spouses are equally responsible for their accumulation.
Judges use four basic ways to divide debts:
In Ohio, assets given to one spouse during a marriage that were considered a gift are considered separate property, as long as it can be proven clearly and convincingly that the gift was given to only one spouse. Separate property remains separate in Ohio, even if it is commingled, unless the separate property cannot be traced back to its source.
Property inherited by one spouse in Ohio during a marriage is separate and not subject to marital property rules.
Unlike laws in some other states, inherited property that is commingled with marital property can still be considered separate as long as it can be shown that it is separate property.
When you inherit property in Ohio, it is best to keep good records regarding the asset whether it is money or a tangible asset such as a home or real goods. One way to protect an inheritance is to have your spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is yours, no matter how it is used in the marriage.
All pensions, IRAs, 401Ks and retirement plans are treated as marital property in Ohio. The catch is that only the portion of the pension or retirement fund earned during the marriage is considered marital property.
Any retirement funds earned prior to a marriage are considered separate property. For example, if you have $500,000 in your pension at the time of your divorce, but you had $200,000 in it at the time you got married, then only $300,000 is considered a marital asset and subject to equitable distribution under the state’s divorce laws.
It may be possible to keep the entire amount of your pension in exchange for giving up the rights to other high-value assets, such as a home. You need to consider that an equitable distribution may not always result in a 50-50 split.
Legally splitting pensions and other retirement funds is a multiple-step process. After the divorce decree or dissolution of marriage has been issued, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
Ohio courts recognize that there are non-marital assets that will belong to only one spouse and not the other in a marriage. These assets fall into four categories:
To prove that an asset is a non-marital asset, it is best to have written documentation to substantiate a claim. With only oral testimony to go on as evidence, a final decision will rest with a judge.
In other cases, a separate asset may end up being commingled with marital assets, such as when two people end up paying and contributing toward the payment and upkeep of a house that was originally owned by just one of the spouses. It can be difficult to show and prove what amount belongs to just one of the spouses in cases such as this.
Spousal support may be made to a current spouse, former spouse or a third party to the benefit of the spouse or former spouse. Upon request and after a division of assets, the courts may award a reasonable amount of spousal support to either spouse. This can be in the form of money, real property or both and can be made in a lump sum or in payments over a period of time.
According to Ohio divorce laws, there are several factors that will determine if a spouse should be awarded spousal support or not. These factors include:
The state of Ohio has put in place official child support guidelines that are used to determine the amount of support one or both spouses must pay in a divorce. These guidelines are assumed to be just and correct unless it can be proven that the amount would be inappropriate under the circumstances of a particular divorce.
In addition to paying monthly child support, both parents will be responsible for other expenses such as healthcare, childcare, education and other related expenses that may not take place every month.
The Ohio Department of Job and Family Services has an online calculator that spouses can use to get a good idea of how much child support one or both parents may be expected to pay. You can access that calculator here.
According to child support laws, there are many factors that can lead to an adjustment:
If a parent misses a child support payment, the other parent can file a violation with the courts. At a hearing, the court will decide if nonpayment was willful or non-willful and then decide if a money judgment should be awarded.
Ohio follows guidelines laid out in the Uniform Child Custody Jurisdiction and Enforcement Act when it comes to determining child custody issues. In all cases, decisions will be made based on the best interests of any children involved in a divorce. In most cases, courts prefer that parents work out a suitable arrangement that involves both, but when this does not happen, the courts will step in and make decisions for them.
Custody is dictated by determining who has legal custody and who has physical custody. By law, the court is not permitted to favor one parent over the other because of gender.
Legal custody means that a parent has the right to make important decisions about how the child is raised and cared for, including religious upbringing, medical care and other similar issues. A judge may choose to grant joint legal custody and when this happens both parents make these kinds of decisions for the child together. If the judge grants sole legal custody to one parent, then that parent is the only one responsible for making important life decisions for the child.
Physical custody defines which parent the child lives with. This dictates who is responsible for the day-to-day physical care and supervision of a child. A judge may choose to grant joint physical custody in which case the child will live with each parent a specified amount of time.
Some issues that may impact how custody is granted can include things such as each parent’s ability to care for the child, mental health of each parent, substance abuse, domestic violence or criminal activity issues. Other factors may include each parent’s work schedules, the social, educational, medical and religious needs of the child, is a parent planning to establish residency outside of Ohio, and when children are older, what their personal desires are.
In Ohio, grandparents do have the right to seek visitation as part of the parents’ divorce or dissolution of marriage as long as it is in the best interests of the children
Substance abuse may indirectly be used as one of the reasons to seek a divorce in a fault-based divorce action in Ohio. It may fall under one of the legal grounds such as habitual drunkenness, gross neglect of duty or extreme cruelty.
It is important to document the presence of substance abuse in a marriage if it will be used as a factor in a divorce. This can be done by testing, testimony from family members or from representatives of social services agencies, or other witnesses who can provide first-hand information and insights.
Substance abuse can impact many parts of a divorce in Ohio. For example, if it can be proved that one spouse spent considerable marital assets on drugs or alcohol during a marriage, it may have an impact on how assets are divided.
Substance abuse issues carry even greater weight when it comes to child custody and visitation rights. Because all decisions are made in the best interests of any children in a marriage, if substance abuse is present, custody and visitation rights could be denied if there is the possibility of danger to the children.
Bifurcation means that both parties in a divorce can be legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Bifurcation of marital status is allowed in Ohio, but courts are generally not in favor of the bifurcation process because it removes incentives to finalize a divorce and it means that courts may have to deal with the same case more than once, creating a lack of judicial efficiency.
Couples should be sure to consider the cost implications if they must go through two court proceedings instead of one.
Ohio Divorce Financial Affidavits are required in many of the state’s counties. This is the first step in satisfying the need for full and complete disclosure of assets and liabilities so that an equitable distribution of both can take place. Each party in a divorce is required to fill out and file an Affidavit.
These documents are used to support Separation Agreements, Dissolution of Marriage Decrees and Divorce Decrees. Those documents typically do not state the value of assets, but a Financial Affidavit will tell the court what those values are.
Affidavits are also used to assist in determining how much, if any, spousal support and child support may be ordered by the courts.
Many county courts in Ohio have their own versions of the Affidavits, but the Ohio Supreme Court has also adopted uniform affidavits that must be honored in all counties. A person can use either one to meet their obligation.
If a spouse lies on an affidavit in Ohio, they may be liable for both criminal and civil penalties. The amount of those penalties will depend on the extent and severity of the falsified information.
When a spouse files a petition for divorce in Ohio and the other spouse cannot be found or does not respond in a timely manner, the court can grant a divorce through a default judgment. The spouse must go to court and testify as to the facts surrounding their divorce before a default judgment can be issued.
When a spouse does not respond, they forfeit their right to contest any terms of the divorce, including important issues such as child custody, support, alimony and a division of assets and debts.
Domestic violence in Ohio can include any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other. It can play a factor in a divorce, but those actions are secondary to the immediate safety concerns of a spouse or children who may be in immediate danger.
When domestic violence is present in a marriage, a victim can seek immediate relief by requesting an “ex parte” hearing (this means without the perpetrator present) and Ohio courts will hold a hearing the same day the petition is filed. This will provide short-term relief in the form of a temporary protection order.
A full hearing will then be scheduled within 10 days at which time a long-term protection order may be put in place. This will put several protections in place for all members affected by the acts of domestic violence.
A long-term order will also allow the spousal victim to begin divorce proceedings after the immediate needs of safety and shelter have been addressed.
Ohio law requires that all child support issues must include healthcare covered for children, either by maintaining a current policy or by purchasing a policy at a reasonable cost. Each parent may be required to contribute to healthcare support in proportion to his or her income.
According to the Ohio Revised Code, if a child is covered by a spouse’s health insurance plan prior to the initiation of a divorce proceeding, the parent who holds the plan cannot cancel the policy while the divorce is still pending. This holds true for spouses who are covered as well. If the parent does not follow this rule, the court will make the transgressing parent reinstate the policy, pay for any missed premiums and they will be responsible for any medical bills that were incurred during the cancellation period.
After a divorce is granted, a spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage. As part of a settlement, a judge may order one spouse to pay for the other’s health insurance.
A spouse can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows a person to continue with their spouse’s current coverage for up to 18 months as long as they pay the full premium amount
Infidelity and adultery take place when a spouse has sex voluntarily with someone other than their spouse while they are still married.
In Ohio, this can be one of the reasons cited in a fault-based divorce. It may have an impact on whether or not to grant a divorce and award alimony, but it does not impact child custody and support decisions.
A spouse who does cite adultery will be expected to prove that it took place during the course of the marriage. This proof can come from documents, emails and text messages, or by having someone provide testimony as a witness.
Your or your spouse must be either live in Ohio or be stationed in the state to meet residence requirements under the laws governing military personnel who are seeking a divorce.
The grounds for a military divorce are the same as they are for a civilian divorce in Ohio. You can either file for a no-fault or a fault-based divorce.
Once paperwork has been filed to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. When that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.
The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. A service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.
In addition to Ohio property division laws, the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place. Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.
The U.S. government will not recognize a division of a military pension if those terms are not met, but what may happen is that Ohio courts will assign other assets to a spouse that has an equal value to what the military pension may be worth.
Child support and spousal support are determined by state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemembers pay and allowances if they are single. Normal Ohio child support worksheets, rules and procedures are used to determine the exact amount of required support.
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Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
