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"Separate property" refers to the principal in Ohio domestic relations law that the property one brings to the marriage remains the separate property of that individual and does not get divided should the marriage fail. In addition, certain property acquired during marriage is also categorized as separate property, such as gifts or inheritance.

On the other hand, "marital property" is property acquired during the marriage where both parties are assumed to have contributed to the acquisition. For example, a house purchased during marriage becomes marital property, even if it was purchased only by one of the parties, and, often, even if that purchase was made with separate property. This is particularly true the longer the parties are married as the non-purchasing spouse is assumed to contribute to the value of the home through contributions such as maintenance, etc. Marital property is subject to division when the marriage terminates, separate property is not.

Recognizing this before and after marriage distinction in property makes Ohio a "separate property state," along with thirty-nine other states. States that do not recognize the distinction are known as "community property states". There are nine community property states, mostly located in the west and including: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Wisconsin. If you did the math, you realized there is one holdout - Alaska- which allows married parties to "opt-in" to either regime.

Obviously, separate property is the more accepted and popular doctrine, but it isn't without its drawbacks. The main issue raised when the marriage ends, is determining what is separate and what is community or joint property. This issue becomes more and more complicated the longer the parties are married, because memories fade, documentation is lost, and as property gets co-mingled. The co-mingling is the most common complicating factor.

For example, assume two people get married and bring significant assets to the marriage. One party has already established a retirement account and the other has received a large inheritance. Normally, those assets would remain the sole property of each individual before, during, and after the marriage. However, if one party "mingles" that separate property with other property without creating a way to track and distinguish the two later, than the mingled asset will become joint or community property and lose its separate status.

This can happen by using that inheritance to purchase a house with your spouse, which both parties then contribute to. This can also occur by continuing to contribute to that retirement account by investing money you earn while married. Unless you trace the increase or decline of the funds separately over the period of time you were married, the entire retirement account will be joint, marital, or community (different ways of saying the exact same thing).

Generally, being a separate property state is seen as a positive attribute of Ohio's legal regime. It embraces the reality that there are different phases of life and that there are valuable reasons to keep them distinct.

Learn more about this author, Joseph Hazelbaker.
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