Cincinnati Family Law & Divorce Blog: Marital Property, Separate Property and Mixed Property Explained
In a divorce or a dissolution, Ohio law provides that the court must order an equitable division of all marital property or debt. Generally, property or debt acquired by either party during the marriage is deemed “marital”. This includes any property acquired during the marriage, regardless of which party’s income was used to purchase that property. Retirement benefits, household goods, cars and investments are marital property and this is true even if these assets are not tiled jointly.
However, certain property can be deemed one party’s separate, otherwise called non-marital property. Separate property can include property that either party owned prior to the marriage, received as a gift or inheritance, or purchased with funds that the party had prior to the marriage or received as an inheritance or gift. Separate property will not be included in the overall division of property, but rather will be awarded to one party. In order to be deemed separate property, the party making such a claim must be able to establish for the court, or the other party, that the property is indeed separate. This is referred to as “tracing.” Tracing can include documentation of when the property was purchased and what funds were used to make the purchase. Alternatively, it may be providing a copy of the Will that awarded the party certain property.
In some circumstances, property may not be fully marital or fully separate and therefore will be deemed “mixed” property. This means that a portion of the value or equity in the property is separate and another portion is marital. This most commonly occurs with real estate. For example if Wife purchased a home prior to the marriage and after the marriage the parties continued to live in that home and pay the mortgage, the equity that was created by the pay down in the mortgage would have partially been due to Wife’s payments before the marriage and partially to payments made after the marriage. Therefore, Wife, with the assistance of her attorney, will have to establish what amount of equity was created prior to the marriage in order to claim that equity as her separate property.