Protecting Your Assets during Divorce

Going through divorce is difficult enough without also having to worry about how you will be able to take care of yourself (and any loved ones) afterwards, financially speaking. And yet, this is a very serious concern for many, especially those who may have put off education and careers in order to take care of a family for some years during their marriage.

Ohio abides by equitable distribution, which essentially means that all property and other assets which were either acquired or increased in value during marriage are divided up based on what the court deems is fair. While inheritance and other assets that were acquired prior to marriage are typically considered non-marital property not subject to division, two important aspects of this to note are: 1) pre- or postnuptial agreements can set aside particular property rules the couple wants the court to abide by, dodging equitable distribution even for some marital property, as long as it’s legal (for example, many courts will not allow parents to waive child support payments because it is not in the best interest of the child); and 2) where things get tricky is if one spouse owned property prior to the marriage, but the other spouse paid into improvements on that property during the marriage.

Steps To Keep Assets Separate

There are some steps you can take to ensure that any property or assets remain separate when you get married (or if you are already married), including but not limited to:

  • If you receive financial, property, or any other inheritance, keep it in your name and do not merge accounts;
  • Make sure any property you did acquire prior to marriage is documented as such officially;
  • If you were previously married and acquired property or assets from that other marriage, keep it separate and do not mingle those assets with current marital property;
  • Draft a pre– or postnuptial agreement that explicitly sets aside any real or personal property or interest in real or personal property that you want to remain separate;
  • Note that any compensation to a spouse for the spouse’s personal injury is considered to be separate property by law;
  • Mark any gifts of real or personal property (or interest in) as clearly being intended to be given to one spouse only; and
  • Make sure that—if you do commingle separate and other property—you keep it traceable.

Otherwise, the court has jurisdiction over all property, excluding the Social Security benefits of a spouse, and shall divide the marital and separate property equitably between the spouses.

What Is “Equitable”?

It is important to note that if an equal division of the marital property would be inequitable, the court does not divide it equally, but in whatever manner the court itself deems to be equitable. There are various factors that the court considers in making this determination, including:

  • Duration of the marriage;
  • Assets & liabilities of the spouses;
  • Desirability of assigning certain assets—such as the family home—to one spouse or another with regards to who has custody of any children from the marriage;
  • Liquidity of the property being distributed;
  • Economic desirability of retaining a particular asset as intact;
  • Any tax consequences of property division;
  • Any applicable costs of sale that may be necessary to effectuate equitable distribution; and
  • Various other factors.

Skilled Dayton Family Law Attorneys

If you are contemplating or already going through a divorce and you have any questions related to property division or any other family law issue, contact us today to schedule a consultation with one of our attorneys. We have been serving clients in the greater Dayton and southwest Ohio regions for over 20 years, and we will work hard to get you the results you deserve.

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