The attorneys at the Cincinnati family law firm of Phyllis G. Bossin Co., L.P.A., represent individuals and families across Hamilton County and surrounding counties.
In any divorce, dividing marital property and accounting for nonmarital property is a significant undertaking. Ohio law mandates that all marital property be divided in a fair and equitable manner, but fair and equitable does not necessarily mean equal — Ohio Revised Code § 3105.171. Judges initially presume that an equal division is correct, but the court may deviate from this at their discretion. This occurs most often when one spouse owns substantially more separate property or there is evidence of serious economic misconduct such as wasting marital assets. However, before any property can be divided, it must first be categorized as either marital, separate or mixed.
What constitutes marital property? If it was acquired during the marriage, acquired with marital funds or acquired through marital effort, it is probably marital property – even if it is titled in the name of only one spouse.
What, then, is separate or nonmarital property? Property owned by a spouse prior to the marriage, gifts or inheritances are all likely separate property and not subject to division.
When property owned by one spouse prior to the marriage increases in value during the marriage, it may also become a mixed asset. Deciding whether a mixed asset has appreciated due to passive forces or through marital effort will determine how it is valued and divided.
Whether an asset should be categorized as marital or separate, or whether a nonmarital asset has been “transmuted” into marital property, is often hotly contested. The party claiming that property is separate has the burden of proof. They may attempt to trace the asset to a date prior to the marriage or present evidence regarding the intent of a transfer.
In addition to being categorized, property must also be valued. While the value of a bank account may be easily determined, expert witnesses may prove necessary to value certain assets such as a commercial property in a volatile market or a closely held corporation. Valuations of complex assets can often become highly contentious, with experts from each side holding widely differing opinions.
In the case of mixed property, determining an exact number for the marital versus separate portions of an asset can be more art than science. Using trustworthy and reputable experts who provide accurate assessments, regardless of which party they are hired by, is essential. At Phyllis G. Bossin Co., L.P.A., our lawyers are experienced in dealing with complex valuations and regularly enlist the services of renowned experts when necessary.