We have all seen the statistic that around 50% of all marriages end in divorce. Therefore, it is only natural to be concerned about how assets are divided in a divorce. Many people believe that in a divorce each spouse is entitled to half regardless of how long they have owned the assets and how it was acquitted. This is not the case. Some assets are not considered assets of the marriage.

Under Ohio law, assets that are accumulated during the marriage, by either spouse’s efforts, are considered to be marital. These assets are divided “equitably” between the spouses. In almost all cases, courts will consider equitable to be the same as equally. It does not matter in whose name the asset is titled. For example, if husband and wife buy a farm during marriage and the farm is titled only in wife’s name, the farm will still be considered a marital asset and divided equally between the spouses. Furthermore, it does not matter if one spouse’s effort was more responsible for acquiring the asset. A spouse that is working off-farm and has no involvement with the farm is still going to likely be entitled to one-half of the farm purchased by the other spouse’s farming operation.

There are three circumstances in which Ohio law specifically excludes assets from being marital:

1. assets acquired before marriage

2. assets acquired by inheritance (even if acquired during marriage)

3. assets acquired by gift (even if acquired during marriage)

The justification for excluding these assets are that they were not acquired as a joint effort of the marriage.  However, if any of these excluded are later put in the name of the other spouse, they become marital assets. In a divorce proceeding, a court usually presumes assets to be marital assets unless there is proof otherwise. For example, if husband inherits farm machinery from parents and does not want the machinery to be a martial asset, he should have good documentation to prove to the court that the machinery was inherited and not purchased. Without good documentation, the court may presume the machinery is a marital asset.

Excluded assets can lose their exempt assets over time. For example, husband inherits a farm during marriage. The farm will not be considered a marital asset provided the spouse’s name is not included on the deed. However, over the next 20 years, tile is added and buildings and bins are constructed on the farm. The farm has been improved during the marriage, and now it may be at least partially considered a marital asset.

A prenuptial agreement allows the husband and wife to decide prior to marriage what assets will or will not be marital assets. Assets that are owned prior to marriage can be clearly defined so that there is no confusion later. Also, prenuptial agreements can override the law. The spouses can agree that some or all assets accumulated during marriage not be marital assets. Generally, the spouses can agree to divide the assets in the event of divorce in any manner they wish. When entering into the prenuptial agreement, it is extremely important that both spouses fully disclose the assets they own prior to marriage, and that the document be signed well in advance of the marriage ceremony. Prenuptials that are presented and entered into the day before the wedding ceremony are often not enforced by the court. Neither party must be under pressure to enter into the agreement.

Agreements entered into after the marriage are not enforceable. Even if the husband and wife sign an agreement as to how to divide the assets in the event of a divorce, a court will not hold either spouse to the agreement if it was signed after the parties were married.

Moore is an attorney with Wright & Moore Law Co. LPF. Email him at [email protected], or call 740-990-0750.