Property Division
I.
A.
MARRIAGE BEGINNING / END DATE
ORC 3105.17(A): “During the marriage”
1. Presumptions:
a) Beginning: the date of the ceremony is when it begins
b) End: The date of the divorce (i.e., final hearing) is when it ends
c) BUT court of equity  court has discretion to determine when the marriage begins and ends to
avoid a division of property that would be inequitable
B. De facto commencement date
1. Bryan v. Bryan (2012): Spouses were engaged, began living together in 1988; had a ceremonial marriage
in 1994; 2011 – separated; Court uses 1988 as the de facto commencement date because the wife used
her income to contribute to their living expenses and, therefore, allowed for the down payment of the
marital residence after marriage
2. Al-Mubarak v. Chraibi: Court determines that the marriage commenced in 2001, when the parties
decided to marry, rather than 2010, when they obtained a legal marriage because:
a) The parties lived together continuously
b) The parties held themselves out as H&W
c) The husband benefited from the “marriage”
C. De facto termination date
1. Longfellow v. Longfellow (1999):
a) Trial courts use a de facto termination of marriage date when the parties:
(1) Are separate
(2) Make no attempt at reconciliation
(3) Continually maintain separate residences, bank accounts, and business activities
b) Courts should be reluctant to use de fact termination solely because one spouse vacates the marital
home; The decision must be bilateral and clear, not unilateral
2. Al-Mubarak v. Chraibi:
a) Court rejects the de facto termination argument, holding that the marriage ended in 2013, the last
day of the trial, rather than 2011, when the wife left the marital residence
b) Significant portions of the parties’ marital property and financial holdings remained entangled until
the conclusion of the trial; wife was completely financially dependent on Husband
Property Division
II.
MARITAL VS. SEPARATE PROPERTY - ORC 3105.171(3)(a)
A.
Separate property of one spouse: ORC 3105.171(6)(a)
1. Property owned by one spouse before he or she is married; not part of the marital estate; awarded to the
person who owns it
a) (i) An inheritance by one spouse by bequest, devise, or descent during the course of the marriage;
b) (ii) Pre-marital property: Any real or personal property or interest in real or personal property
that was acquired by one spouse prior to the date of the marriage;
(1) If one or both spouses worked in the business, and the spouse has managerial control via
decision-making, any appreciation in value of the business from the date of the marriage
until the date of the divorce would be marital property
c) (iii) Passive income and appreciation acquired from separate property by one spouse during
the marriage;
(1) Passive income (separate): Income generated passively from separate property is going
to continue to remain separate; spouse did nothing that made the property more valuable
(2) Active income (marital): increase in the value and income, even for separate property, as
the result of a spouse’s labor, money, time
d) (iv) Any real or personal property or interest in real or personal property acquired by one spouse
after a decree of legal separation issued under section 3105.17 of the Revised Code;
e) (v) Any real or personal property or interest in real or personal property that is excluded by a
valid prenuptial agreement;
f) (vi) Compensation to a spouse for the spouse's personal injury, except for loss of marital
earnings and compensation for expenses paid from marital assets;
g) (vii) Any gift of any real or personal property or of an interest in real or personal property that is
made after the date of the marriage and that is proven by clear and convincing evidence to
have been given to only one spouse.
(1) Higher standard on gifts re: clear and convincing evidence
B.
Marital property owned by both spouses
1. Property acquired during the marriage, including any increase in value of separate property during the
course of the marriage (even though the underlying property remains separate)
a) All real and personal property that currently is owned by either or both of the spouses, including
the retirement benefits of the spouses, and that was acquired by either or both of the spouses
during the marriage;
(1) Includes debt incurred during the marriage and “for the marriage” (broad term);
(a) If the debt was incurred for a marital purpose, such as kid’s clothing and groceries,
and the benefit was had by the marriage (both parties); that’s going to be
considered marital debt
(b) Even if its Amazon packages, “for the marriage” is a broad term
(2) Exceptions:
(a) Student loans for tuition  separate property because I have the degree that goes
along with it
(b) Student loans go to not just tuition but living expenses  some may become
marital and might be divisible
b) (ii) All interest that either or both of the spouses currently has in any real or personal property,
including, but not limited to, the retirement benefits of the spouses, and that was acquired by either
or both of the spouses during the marriage;
c) (iii) Except as otherwise provided in this section, all income and appreciation on separate
property, due to the labor, monetary, or in-kind contribution of either or both of the
spouses that occurred during the marriage;
Property Division
2. Exceptions:
a) Gifts made to one of the spouses
(1) Engagement rings are conditional gifts
(2) If you get married, the condition has been met and the engagement ring is a gift to that
spouse
b) Property that acquired after legal separation but before divorce
3. Only marital property can be distributed by the court at divorce
4. Unusual forms of property (see slides)
a) Professional license earned during marriage (NY case – O’Brien)
b) Professional goodwill
c) Celebrity goodwill
d) Pet custody (Alaska)
C.
ASSESSING THE VALUE OF PROPERTY
1. Intangible assets such as IP rights and the reputation of a business can be difficult to value
2. Requires an expert to explain how to set a value and establish what that value is
D.
SEPARATE VS. MARITAL PROPERTY  COMMINGLING TEST:
1. Do I have separate property?
2. Can I trace it? If not traceable, its marital property
a) Commingling occurs when the spouses mix separate and marital assets in a way that makes it
virtually impossible to later distinguish the separate property from the marital property
b) ORC 3105.171(6)(b): The commingling of separate property with other property of any type does
not destroy the identity of separate property as separate property, except when the separate
property is not traceable
c) Legal burden  on the party seeking to trace separate property
3. Direct tracing:
a) I had 100K prior to marriage; I bought a painting with it; I can show something to demonstrate
where the money went and that the asset still exists today; direct connecting of the dots from one
form of the asset to another
4. Lowest intermediate balance method: If I put in 100k of separate property; later, I deposit 100k of
marital property; 200k in account; account fluctuates up and down; lowest it every gets to is 80k;
presumption is that 80k goes back to me as separate property; usually applied on accounts that do not
have a ton of activity
5. Proportionate share method of tracing: Finds the proportionate allocation of an account; 100k in
separate property in account; 100k come in as marital property; 50% marital, 50% separate; if dollars
come in and come out, they move in proportion of the balance of the account
III.
A.
IV.
A.
Community Property Division (minority of states)
Requires a mandatory 50-50 division of the marital estate
Equitable Property Division
Generally:
1. ORC 3105.171(C):
a) The division of property should be equal
b) Once you are married, the law views you as a single economic unit, regardless of who earns the
dollar; each spouse is seen as contributing equally to the production and acquisition of marital
property
c) If the division of property equally would be inequitable, the court shall divide the property in a
manner deemed equitable, considering the factors below; trial courts have broad discretion
Property Division
2. TIMING: Must be divided prior to making any award of spousal support and without regard to any
spousal support so awarded
B. Factors for the equitable division of property:
1. (1) The duration of the marriage;
2. (2) The assets and liabilities of the spouses;
3. (3) The desirability of awarding the family home, or the right to reside in the family home for
reasonable periods of time, to the spouse with custody of the children of the marriage;
4. (4) The liquidity of the property to be distributed;
5. (5) The economic desirability of retaining intact an asset or an interest in an asset;
a) Ex: One spouse works in a business, owns a business; it makes sense to keep the business going
rather than to liquidate it; court won’t force you usually to sell a business because the benefit of
having that business in place and the income with it outweighs to benefit of someone being angry
that they lose the business in a dispute
b) Ex: Easier to liquidate the house when two spouses are fighting over it
6. (6) The tax consequences of the property division upon the respective awards to be made to each
spouse;
7. (7) The costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of
property;
8. (8) Any division or disbursement of property made in a separation agreement that was voluntarily
entered into by the spouses;
9. (9) Any retirement benefits of the spouses, excluding the social security benefits of a spouse except as
may be relevant for purposes of dividing a public pension;
10. (10) Any other factor that the court expressly finds to be relevant and equitable.
V.
A.
DISTRIBUTIVE AWARD
Awarding some separate property to the other spouse; the court decides to order disproportionate award of
marital assets for some reason
B. Furthering equity:
1. The court may make a distributive award to facilitate, effectuate, or supplement a division of marital
property
2. The court may make a distributive award in lieu of a division of marital property in order to achieve
equity between the spouses, if the court determines that the division of the marital property in kind or in
money would be impractical or burdensome
C. Financial misconduct
1. Failure to disclose  each spouse has an affirmative duty to disclose in full all marital, separate property
and other assets, debts, income and expenses of the spouse
a) Substantial and willful failure to disclose
2. The court can grant a distributive award to the other spouse; the award should not exceed three times the
value of the property not disclosed, including attorney’s fees
Buck v. Buck
Property Division
1]-The trial court's finding that $ 3,000 monthly cash gifts from the wife's mother was marital property
was not against the manifest weight of the evidence, R.C. 105.171(A)(3)(a)(1), because the cash gifts were
directly deposited into the joint money market account, which was utilized by both parties for their personal
benefit;
[2]-The trial court did not abuse its discretion by dividing the marital property with 65 percent
awarded to the husband and 35 percent awarded to the wife, § 3105.171(C)(1) and (F), because the
husband's injuries limited his employment prospects and he was unlikely to ever have substantial earnings in the
future, while the wife maintained her nursing license, and most likely could enter back into the work force for a
period of time.
Adams v. Adams (2020)
[1]-The trial court's decision regarding the husband's financial misconduct pursuant to R.C.
3105.171(E)(4) was not against the manifest weight of the evidence because the record indicated that he
transferred money, made purchases on a marital credit card, and gave money to family members using
backdated checks immediately after his announcement that the marriage was over. The husband even admitted
during his testimony that he did not want his access to the funds limited because of the divorce, and
he incurred marital debt on purchases for himself.