Who Gets The House In A Divorce In Ohio?

Home is where our lives are lived. It’s where we often commemorate our joys and celebrate our wins. On the other hand, for a family that is undergoing a divorce, the idea of “home” could become contentious. 

At the Law Offices Of Cara L. Santosuosso, LLC, we understand the stress and turmoil that a couple and their children could face as they step forward into their new, post-divorce life. We are divorce lawyers in Cleveland, Ohio and are here to help dispel misconceptions and provide sound information about individual rights in divorce.

Division of Property in Divorce: Martial vs Separate

Ohio is an equitable division state, which means that in a divorce, marital property is divided equitably between spouses. The court makes informed decisions based on specific circumstances to reach the most reasonable and fair outcome. Before we go further, we should define some terms.

Marital property: property that is considered to be owned by both marriage mates

Separate property: property that is considered to belong to just one spouse

Common examples of marital property include:

• real and personal property 
• interest in real estate or personal property
• income and appreciation on separate property
• money from a public employee participant account

Common examples of separate property include:

• property acquired before the marriage
• inheritances and gifts received from third parties during the marriage
• property included in a prenuptial or postnuptial agreement
• property acquired after a separation
• certain veterans' benefits
• sum of an award or settlement of a claim decided either prior to marriage or after separation

Some items may fall under both categories; the court will have the final say. In general, most everything that is purchased or obtained over the course of the marriage is seen by a court as being marital property. This typically includes the house, along with other assets, like miscellaneous personal property, vehicles, bank accounts, and retirement benefits. Most courts will presume that both spouses have contributed equally to any marital property they acquire. A judge may decide on equal division of some assets, but others will demand a closer inspection.

Maintaining Separate Property in Divorce

In some situations, a home may have been inherited by one of the spouses. If this inheritance occurred prior to the marriage or after separation, then it could be deemed to be separate property, and the inheriting spouse may be entitled to keep the property. On the other hand, if the home was inherited during the marriage, it will likely be seen as marital property. 

A judge will often assume that the home and other assets are marital, unless it can be proven otherwise. A solid paper trail is the best way to document property that is asserted to be separate. Simply having one spouse’s name on a title is not enough evidence for the court. No judge is out to punish either party, but strives to be impartial and adhere to state law. 

Note: If a couple has been married for 25 years or more, the relationship is considered a long-term marriage and the court may categorize all property as marital.

Deciding Who Keeps the House

When determining which assets are divided and how, the court will take into account factors including:

• length of the marriage
• each spouse’s assets and debts
• custody of the children
• liquidity of assets
• tax consequences
• retirement benefits
• any other relevant points

In the case of a family home, only one spouse can live in the home after the divorce. That said, the equity in the home will still need to be divided. The court will examine each spouse’s situation to see whether they can afford the home. The scenario will generally play out to meet one of the following circumstances:

• Only one spouse can afford the home: they will typically keep it
• Neither spouse can afford the home: the home is sold and proceeds are divided equally
• Both spouses can and want to keep the home: they will need to negotiate through a divorce lawyer and/or the court

Whichever spouse is determined to be the one to keep the home will then need to refinance in their name only. They will also need to pay the other spouse their share of the home’s equity. That sum can often be included in the refinancing.

Assets could be divided using other methods as well. For instance, if the home’s equity is equal to another asset like a retirement account, then the spouse who prefers to keep the home could forgo receiving the retirement benefits. The same could be true if neither wants to keep the home–the sale proceeds could offset another asset that the other spouse receives. In the case that neither spouse wants to live in the home or sell, they could retain joint ownership and rent the home as a source of income.

Clearly, dividing assets in divorce is a complex issue, no matter the angle used to approach the problem. This is just one more reason why working with an experienced collaborative divorce lawyer is so vital to ensure that each party is treated fairly and that every family member is taken into account in the decision-making process.

If One Party Moves Out

It could be that one spouse has already moved out of the family home. Some wonder and worry that this forfeits their rights to the property, but this is not necessarily the case. Ideally, before moving out, both parties would come together and form an agreement on maintaining the home and paying for home-related needs. That said, there are potential ramifications of moving out before the divorce is finalized, so if it is not possible to come to an agreement on their own, a couple can seek out a divorce attorney for reliable and informed advice.

If minor children are involved and have remained in the home with a parent who acts as their primary caregiver, the court will often grant residence in the home to that parent, given that they can afford it. The court will generally try to avoid requiring a child to change schools, move away from friends and family, or undergo a major change in living situation if at all possible. If the couple does not have children, then the individual who remained in the home and has been taking care of bills and maintenance could be favored if their spouse has already left. 

Note: If a spouse is planning to move prior to the divorce, they need to keep in mind that in Ohio, there are some residency requirements which could negatively impact their case.

Consult Experienced Divorce Attorneys in Cleveland, Ohio

Asset division in divorce is complicated. There are plenty of moving parts and countless case-by-case factors that could influence the court’s final decision. In the end, every parent’s and child custody attorney’s goal is to ensure the best, most supportive environment for any children involved as they adapt to their new life. At the Law Offices Of Cara L. Santosuosso, LLC, our collaborative divorce attorneys only want what is best for your child. Maintaining a sense of stability and normality in the face of upheaval is vital to a child’s development and we will fight to that end.

If you are either contemplating or in the midst of divorce and have questions about who will be able to remain in the family home, do not hesitate to contact our team of divorce lawyers. Wherever you are in your divorce process, we are ready to help.