Marital vs. Non-Marital Assets: How to Determine the Difference

Date Posted:April 28, 2015 | Categories:

Marital and Non Marital Assets

Divorce is a complicated business.  One of the difficulties in handling a divorce is deciding whether an asset is a marital asset, and thus subject to division between the divorcing parties by the court, or a non-marital asset, and thus not subject to division by the court. Ohio law assumes that all assets are marital assets, unless an individual can prove otherwise. 

Examples of marital assets include the following:

  • All real and personal property currently owned by either or both spouses that was acquired during the marriage, such as a house;
  • All interest that either or both spouses have in real and personal property that was acquired during the marriage, such as rental property;
  • All income and appreciation on separate property that occurred during the marriage, such as the income from rental property; and
  • All retirement income put away or earned by either spouse during the marriage, such as a pension, 401k or similar account.

As you can see, this includes nearly everything that was earned or acquired during the marriage.  There are exceptions to these rules that define certain items as “separate property,” or non-marital assets. 

Examples of non-marital assets include the following:

  • An inheritance by one spouse, such as money from a parent;
  • Any real or personal property that was acquired by one spouse before marriage, such as a house that was owned when the marriage began;
  • Any interest in real or personal property that was acquired by one spouse before marriage, such as a share in an inheritance of land from a family member;
  • Passive income and appreciation acquired from separate property by one spouse during the marriage;
  • Any real or personal property acquired by one spouse after a decree of legal separation was issued under section 3105.17 of the Revised Code, such as new furniture to furnish an apartment one spouse moved into after legal separation;
  • Any real or personal property or interest that was acquired by one spouse that is excluded by a valid prenuptial agreement;
  • Compensation for a spouse’s personal injury, except for loss of marital earnings and compensation for expenses paid from marital assets; and
  • Any gift of real or personal property given to one spouse with clear and convincing evidence that it was given only to that spouse, such as a gift from one parent to their son or daughter with an accompanying document saying it is only for that person.

Because of the difficulty of documenting non-marital assets, the assistance of a divorce attorney well versed in Ohio law is vital. An attorney can help you trace the origin of your non-marital property and prove that it is not part of the marital property. Some types of property, such as pensions, can include both marital and non-marital assets. It takes a skilled lawyer to define and separate the two so that your divorce is fair.

Looking for experienced Columbus, Ohio divorce lawyers? Edward F. Whipps & Associates can assist you. We have extensive experience successfully determining which property is marital and which property is non-marital in divorces.

You can arrange a mutually convenient time for a consultation with Edward F. Whipps & Associates by calling our Columbus office at (614) 461-6006, our Dublin office at (614) 461-6007.