Property division in Marriage termination proceedings

In any divorce or dissolution of marriage, all property, whether it is separate or marital, must be disclosed, valued and allocated to one of the parties. Ohio is an equitable distribution state, meaning that the marital property will be divided equitably; however, the presumed starting point is an equal division.

There are many complicated issues with respect to the division of property, including the value of the asset; the identity of the asset; whether the asset is marital, separate or mixed; how the asset will be divided and the tax consequences related to the asset. It is counsel's job to conduct full discovery and obtain valuations of all of the assets.

In the event of an executive divorce, the property issues can become complicated as there are assets associated with the executive compensation plan. These might include non-qualified retirement plans, stock options, stock appreciation rights (SARS), restricted stock, vesting schedules, perquisites and other fringe benefits. It is imperative that counsel understand all of the components of the executive's compensation plan in a divorce or dissolution.

Another significant issue that can arise is related to the character of the property; that is, whether it is marital or separate or mixed. All property is presumed to be marital and the burden of proof is on the person claiming that the property is separate. Sometimes it is very clear from the beginning that an asset is separate. However, often the asset has become commingled with marital property. If this is the case, then a complicated tracing must be undertaken to demonstrate whether the property is marital, separate or some of each. This same issue can arise with regard to a business that a person owned prior to the marriage but that increased in value during the marriage. A complex business valuation will be required to determine what portion of the value is marital and what is separate.

In the professional divorce, it will be important to determine the value of the professional practice. While in Ohio the license itself is not property, there can be value in the practice, which could be marital, separate or mixed. The same valuation process would be undertaken to determine the marital and separate values.

Phyllis G. Bossin has decades of experience in the valuation and division of assets in highly complex cases including the executive divorce and the professional divorce.