What Is Premarital Property in Ohio?
Premarital property (also known as separate or non-community property) is property one spouse owned before the marriage. Ohio courts generally will not include those when dividing assets in a divorce, instead allowing them to be kept by the original owner. Among the items that may be considered premarital property:
- Any personal or real property owned by one spouse before the marriage
- Property inherited by or gifts made to one spouse during the marriage (with some exceptions)
- Property specified as premarital in a prenuptial agreement
- Funds provided to one spouse as part of a personal injury case settlement for pain and suffering
Legal guidance also exists for dividing assets that appear to cross from premarital to marital. For example, if one spouse owned a home before the marriage and sold it, then used any profits from the sale toward a marital home, the value of the profits used in the down payment will likely be awarded to that spouse in a divorce.
Is Ohio a Community Property or an Equitable Division State?
When a couple divorces, one of the key concerns is how their assets and debts will be divided. Ohio follows the principle of equitable distribution, which means that the court does not aim for an equal 50/50 division of property, but rather a division that is fair based on a variety of factors. In contrast, some states follow community property laws, which typically split assets down the middle. However, this approach is less common than equitable distribution and is used in fewer states.
Equitable Distribution in Ohio
Under Ohio law, the court strives to fairly divide assets based on several important factors. While many people think of property division as a 50/50 split, the court looks at the financial situation of each spouse, their earning potential, and other circumstances when determining how to allocate property. This could include one spouse’s contribution to the other’s career or education, or whether a spouse has stayed home to care for children. The court also considers the value of each spouse’s separate property and how that should be taken into account when making the final division.
In situations where property cannot easily be divided—such as with real estate or valuable items like fine art—the court may decide to offset these items with other assets or cash to balance out the division. The goal is to reach a fair resolution that reflects the unique circumstances of each marriage. The judge may also factor in the length of the marriage, the needs of any children involved, and whether either spouse has been the primary financial provider. Understanding how the law applies to your specific situation is crucial to achieving a fair and just property settlement.
Community Property
Community property laws aim for a more straightforward 50/50 split of assets and debts. However, Ohio does not follow this system. In community property states, if a couple cannot agree on the division of their assets, the court generally works to divide everything equally. For items that are difficult to divide, such as family heirlooms or real estate, the court will likely attempt to offset their value with an equivalent amount in cash or other assets. While community property is not used in Ohio, understanding how other states handle property division can still provide valuable insight into how property distribution works in different jurisdictions.
What Are Some Exceptions to Premarital Property Belonging to One Spouse?
As discussed earlier, in Ohio, gifts or inheritances given directly to one spouse and not the other are generally considered premarital property. This means that they are not subject to division in a divorce, as long as they remain separate and are not used for the benefit of both spouses. However, there are important exceptions that can transform what might initially be considered premarital property into marital property.
When a gift or inheritance is used for the benefit of both spouses, it may no longer be considered separate property. This process is known as commingling, and it can make the distinction between premarital and marital property much more complicated. For instance, if one spouse receives a large inheritance and uses that money to purchase a family home or fund joint vacations, the court may treat those assets as marital property rather than separate property. This can have a significant impact on how assets are divided during a divorce.
Commingling Exceptions
If you find yourself in a situation where the line between premarital and marital property is unclear, it’s crucial to understand how commingling may affect your case. The division of assets in a divorce can be influenced by how funds or gifts are used within the marriage. Below are some common exceptions that can affect whether a premarital asset remains separate or becomes marital property:
- Joint Use of Gifts or Inheritance: If a spouse uses an inheritance or gift for joint purchases, such as buying a home or funding vacations, it may be considered marital property.
- Joint Bank Accounts: If a premarital inheritance is deposited into a joint account and mixed with marital funds, it may lose its separate property status.
- Renovations or Improvements to Marital Property: If inheritance money is used to improve or renovate property owned by both spouses, the court may decide that the value added is marital property.
- Commingling with Marital Income: If a spouse uses inherited money to pay for shared expenses, such as household bills or family vacations, this can result in the inherited property being deemed marital property.
- Transferring Assets into Joint Ownership: If an asset initially received as a gift or inheritance is later retitled in both spouses’ names, it may be considered marital property.
How Can I Protect My Premarital Property in the Event of a Divorce?
No one goes into marriage expecting to get divorced, and often, a couple planning a wedding doesn’t want to consider that possibility. One strong protection that can be taken is setting up a prenuptial agreement. People sometimes think that’s a cynical move foreshadowing a certain divorce. In reality, it’s neither cynical nor does it guarantee a divorce will happen. Instead, a prenuptial agreement can help a couple really understand each other’s values and concerns for the future.
In a correctly drawn-up prenuptial agreement, each spouse has the opportunity to put into writing what premarital property each has and commit to respecting each other’s rights to their property if the marriage eventually ends.
But even if the couple didn’t draw up a prenuptial before the marriage, there’s another option. A recent change in the law in Ohio means couples now have the option to draw up a postnuptial agreement. That’s similar to a prenuptial, except it’s created after marriage. Until recently, Ohio courts didn’t recognize a postnuptial as legally binding, but that changed in 2023.
Ohio law requires the following for either a prenuptial or postnuptial to be legally binding.
- Signed and notarized. Either agreement must be in writing, signed by both spouses, and notarized.
- Full disclosure. Each spouse is required to fully disclose all assets and debts. Failure to do so could be interpreted as fraudulent and cause the spouse who didn’t fully disclose to lose some of their assets.
While not strictly required, it’s highly recommended that each spouse have their own attorney review the agreement. This helps avoid conflict of interest and claims of coercion.
What Should I Do if I Have Questions About the Status of My Premarital Property?
Call the Lawrence Law Office as soon as possible at 614-820-1195 to request a consultation. We understand how crucial it is to you to protect your premarital property in the event of a divorce. In a consultation, we can review the property in question and help you determine the best protection approach. Our team of knowledgeable, experienced property division attorneys wants what’s best for you and will do everything we can to help you.
