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All About Divorce in Ohio: Property Division in Divorce when the Parties Have Been Separated for Several Years

This article will be the first of what I intend to be a series of articles, all about different aspects of divorce in Ohio. My goal is to provide meaningful information for people considering divorce in Ohio, and to explain both the law and what really happens in practice.

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The subject of this article is when the marriage begins and ends for purposes of property division. It is very common for married couples to split up, go their own separate ways and live completely separate lives while technically remaining married. They get new significant others, change jobs, accrue assets, take on debt, start businesses, keep contributing to their retirement accounts, move across the country, etc., all without getting divorced. Depending on your specific situation, this may be a very bad idea, though in some cases it won’t matter and in other cases (though rarely) it could even be a good idea. 

Before I continue, let me say this: CONSULT A GOOD DIVORCE ATTORNEY at the very beginning, ideally before separating. Even if you have to pay a consultation fee. There are so many pragmatic considerations to be made that you cannot possibly know of on your own, so consulting a divorce attorney is essential.

Now, back to the subject of this post: what happens, years down the road, when either husband or wife decides they want to make the separation official by filing for divorce (or negotiating a dissolution)? Well, all the typical issues in a divorce – division of property (and debts), spousal support (alimony), child support, child custody and parenting time – still have to be resolved (either through a trial or by negotiation/a settlement). Frequently, someone in this situation will ask: “Is the business I started after we separated still considered “marital property” that I have to give my ex half of?” or “Is he/she entitled to half of my pension contributions right up until the date we are officially divorced, or just half of what was in there as of the date we separated?” Well, as with so many areas of the law, it depends.

The short answer is: It depends on the extent to which you and your spouse have separated. Technically, under Ohio law, property of either spouse that is accrued “during the marriage” (i.e., between the beginning-date and end-date of the marriage, which are court-determined) is generally subject to division between the parties as “marital property.” The beginning-date and end-date are, by default, the date of marriage and date of the final hearing (trial); however, courts can and do choose an earlier end-date if it is “equitable” (i.e., fair) to do so and if there has been what Ohio law calls a “de facto termination of marriage” at an earlier time, before the final hearing. As such, if there was a de facto termination of marriage, then any property obtained by either spouse after  that date is not marital and is not subject to division. Whether or not a de facto termination of marriage has occurred requires a highly fact-based analysis and hinges on how both spouses act after the separation.

The long – and more detailed – answer is:

Under Ohio law, division of marital property in a divorce case is governed by R.C. § 3105.171. That statute requires the Court to divide all “marital” property between the parties in an “equitable” manner (generally a 50-50 split, with limited exceptions). Marital property is essentially (again, with exceptions not discussed here) property of any kind that either spouse obtains “during the marriage.” Property that is not marital is considered “separate” property and is not divided. Property may also be “mixed,” meaning it is partially marital and partially separate (such as a retirement account that existed before the marriage but continued to be contributed to during the marriage), in which case the marital and separate portions are determined and only the marital portion is divided.

Obviously, the spouse who has obtained assets – such as by starting a profitable business, purchasing and rehabbing an investment property or continuing to make contributions to a 401k or pension – will want to argue that those assets are not marital property subject to division. The other side may claim that they should be entitled to half of all property with no regard for when it accrued/was acquired (or, in other words, that all the property you have is marital, even if it accrued/was acquired after the separation). To succeed, you will have to prove that the property not was obtained “during the marriage,” as that phrase is defined by Ohio law (R.C. §3105.171). To accomplish this, you will have to establish at trial that a “de facto termination of marriage” occurred at some point prior to the trial.

Here is the analysis that Ohio Domestic Relations courts go through. R.C. § 3105.171(A)(2) provides:

During the marriage” means whichever of the following is applicable: (a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation; (b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, “during the marriage” means the period of time between those dates selected and specified by the court.

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So essentially, the date of the final hearing is considered by courts and practitioners to be the “default” end-date, but if it would not be “equitable” to use that date for property division purposes, the Court can choose an earlier date that would be more fair and logical under the circumstances. So you must put on evidence that an earlier date would be more equitable.

When a party asks the Court to use an earlier date (i.e., determine that a de facto termination occurred), the Court goes through a two-step analysis. First, it must consider whether using the final hearing date as the termination date of the marriage would be “equitable.” Second, if (and only if) using the final hearing date would be inequitable, it must determine, based on the relevant factors (listed and explained below), an earlier date “that is both equitable to the parties and reasonable based on the evidence adduced at trial.” Shoenfelt v. Shoenfelt, 3rdDist. No.17–12–08, 2013-Ohio-1500, ¶ 19. The Shoenfelt case cited several other cases, including a Supreme Court of Ohio case, when it codified the two-part test.

Courts have a great deal of discretion in selecting a de facto termination date. The general rule is that a decision to separate and end a marriage must be “clear and bilateral, not unilateral,” in order to constitute a de facto termination of the marriage. Dill v. Dill, 179 Ohio App. 3d 14, 900 N.E.2d 654, 2008-Ohio-5310. Whether a clear and bilateral decision was made to end a marriage is a highly fact-sensitive and case-specific inquiry. However, courts have offered guidance on the factors trial courts should consider. The Dill case conducted a survey of sorts of Ohio law from the various appellate districts and the Supreme Court of Ohio, and listed all the factors Ohio courts have considered. The Dillcase recognized the following factors:

  • (1) Whether the parties separated on bad terms;
  • (2) Whether the parties believed the marriage had ended before the hearing;
  • (3) Whether the parties cohabitated with others during the separation;
  • (4) The parties' degree of involvement during the separation;
  • (5) Whether the parties lived as husband and wife;
  • (6) Whether the parties maintained separate residences;
  • (7) Whether the parties utilized different bank accounts;
  • (8) Whether the parties attempted to reconcile;
  • (9) Whether the parties retained counsel; and
  • (10) Whether the parties vacationed separately or attended social functions together.

None of these factors, alone, are dispositive, and the list above is non-exhaustive, so any other reasonable factor can be considered. The Supreme Court of Ohio stated in Berish v. Berish, 69 Ohio St. 2d 318, 432 N.E.2d 183 (1982), that “[e]ach divorce case is different, and the trial court must be free to consider all the relevant factors.” There are many cases on record where courts have found a de facto termination of marriage, and there are even cases where the Trial Court did not find a de facto termination of marriage but the Court of Appeals reversed that decision (uncommon in many other areas of divorce law, due to the wide latitude/discretion the Trial Court often has).

Some examples of how different courts have ruled on different factual situations are instructive: 

1. In the case of Day v. Day, 40 Ohio App. 3d 155, 532 N.E.2d 201 (1988), the husband’s “unilateral” decision to leave the marital home, in and of itself and without additional factors showing a de facto termination, was not enough to constitute a de facto termination of the marriage. 

2. However, in the Dill case, the Court held that it was error for the Trial Court not to find an earlier de facto termination of marriage had occurred, where the parties had separated (husband moved out after wife told him to leave) ten years before the final hearing, lived separate lives thereafter, both dated other people during the separation, and they never seriously attempted reconciliation (wife claimed she did not want the marriage to end, but she consulted an attorney after husband moved out and the only attempt at reconciliation she made was to ask husband to move back, which he declined to do). The Court’s ruling in Dill  was despite the fact that the parties technically retained some joint bank accounts and credit cards (although they essentially separated their finances and used different accounts), husband’s weekly visits with their children at the marital home, husband spending Christmas at the marital home, several sexual encounters occurring between husband and wife during the separation, husband paying wife $1,500 to $1,600 per month to support her and the children throughout the separation, and a technically joint home equity loan used to pay off the first mortgage on the marital home (though it was, in reality, essentially taken out only by husband and merely assented to by wife). Reading the Dill case in its entirety will help understand the analysis involved (link here).

Now here is where a good divorce lawyer comes in. Whether or not the Court in your specific case finds that a de facto termination occurred (or, perhaps better put, what date the Court chooses as the end-date of the marriage for property valuation/division purposes) will depend on the evidence and testimony that is presented at trial. Knowing and understanding the pertinent case law will allow your attorney to emphasize every necessary point at trial and make the most effective arguments (and also to “preserve the record” for an appeal, if necessary). 

However, your attorney’s work starts way before trial. It starts with the advice he or she gives you during the initial consultation. It continues with the “discovery” process, where both sides have the opportunity to have questions answered in interrogatories and in depositions and obtain documents through requests for admission. Discovery has to be conducted with a view to proving the factors outlined above. For instance, in the Dill case, the husband’s lawyer was smart enough to subpoena wife’s loan application. The wife probably never thought about this when she filled out the loan application, but she classified the money her husband gave her each month as “child support,” which the Court found significant.

Again, consult an attorney from the beginning and leave no stone unturned during the discovery process. If you do your homework, it will be easy to present evidence on the key factors at trial.

 

Alex Durst is a Cincinnati civil litigation attorney and appellate attorney with The Durst Law Firm. Licensed in Ohio, Alex has also practiced in Missouri, Florida, Indiana, California, Nevada, Massachusetts, and Kentucky. Alex can be reached at (513) 621-2500 or alex@durstlawfirm.com.