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What Is Separate Property In Divorce?

Daniel F. GIgiano, Attorney at Law, Wadsworth, OhioWhat is separate property in divorce?  It is property that the spouse gets to keep without it being subject to an equitable division by the divorce court.

First, we should look at what is marital property under Ohio law.  The Ohio law defining marital property is found in Ohio Revised Code 3105.171 (R.C. 3105.171).  Marital property is:

  1. All property currently owned by either or both parties or acquired by either or both of the parties during the marriage; and
  2. All property interest that either or both parties currently holds acquired by either or both of the spouses during the marriage;
  3. Active income, which is all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage;
  4. Anything that is not separate property.

The following is separate property as defined by Ohio Revised Code 3105.171 (R.C. 3015.171):

  1. Property interests obtained by one party prior to the date of the marriage;
  2. Property excluded by a valid Antenuptial agreement;
  3. Inheritance by one party;
  4. Passive income and appreciation on separate property (passive income is income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse);
  5. Personal injury compensation (but does not include lost wages or reimbursement of medical expenses covered by marital property);
  6. A gift to one party (but this must be proven by clear and convincing evidence that the gift was to one party and not to the couple);
  7. Property acquired after legal separation.

Often, separate and marital property are commingled during the marriage.  This does not destroy the identity of the separate property, unless the separate property is not traceable.


To read more, click on the following links to my other articles on property division, divorce and dissolution: property division for unmarried couples in Ohio, property division in Ohio divorces, dividing a business in an Ohio divorce, dividing retirement benefits in an Ohio divorce, and Ohio child custody factors.


Attorney Gigiano is a Medina family law attorney in Wadsworth and Akron family law attorney near Barberton, with his office located in Wadsworth, Ohio, and has litigated spousal support issues in Medina County Divorces, Wayne County Divorces, Summit County Divorces, and Cuyahoga County Divorces.  Attorney Gigiano‚Äôs aggressive representation has earned him a number of positive reviews on a number of  sites.  If you have questions about this or other questions you  need answered by a Wooster family law attorney near Orrville, please call Attorney Daniel F. Gigiano at 330-336-3330.