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What is yours is mine and what is mine is mine too?

How to determine separate property in divorce 

When entering a marriage many spouses combine all their financial assets into joint accounts, buy property together, and proceed under the assumption of 'what is mine is yours' and vice versa. However, this age-old adage does not hold true in a divorce. In Ohio, during a divorce, the court divides into two categories; separate property and marital property. Once the property is categorized, the court then makes an equitable division of all property between the spouses according to the specific facts of the case.

Separate property is all property, either real or personal, that is traceable to one spouse. The spouse who is claiming to have separate property has the burden of proving that they either acquired that property prior to the marriage or obtained the property through gift, inheritance, or bequest during the marriage. Examples of separate property include but are not limited to; a down payment on a home made by one spouse prior to the marriage, jewelry received through a deceased parent's Will, or money in a retirement account that was invested prior to the date of marriage. In the instance of the retirement account, the calculation of the separate property would also include any passive interest on the premarital investment. 

In order to prove that property is separate, the spouse must present proof to the court. This proof may include bank statements, mortgage statements, a title of ownership, or the Will or Trust from which the property was inherited. The opposing spouse may provide a counterargument to show that the asset, which otherwise may be separate, was improved upon or co-mingled with marital assets in such a way that it is no longer separate.

The effect of designating property as separate generally means that the claiming spouse is entitled to all or a larger percentage of that property than if the property were designated as marital property. However, the court is not required to award separate property to the spouse claiming a separate interest. Rather, the Court may view the entirety of the assets subject to division and determine if the particular facts of a case make it inequitable for one spouse to retain the full asset. For this reason, it is imperative that there be solid record supporting the separate interest in the property and argument in support of division in favor of the claimant spouse.

This blog is intended to be general in nature and does not constitute legal advice based on your particular facts. To further discuss this, or other matters regarding your specific circumstances, please contact any of our domestic relations attorneys.

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