How many times have we heard those comments and criticisms from our clients and their family members? In many of my initial interviews with potential clients and their family members, I get the distinct impression that they believe the errant Husbands should be “tarred and feathered,” put in stocks in the village square so that raw eggs and tomatoes could be thrown at them, or sentenced to hard labor in a coal mine in Siberia! I try to gently break the news that those things are not going to happen in the State of Ohio.
Our state is a “no fault” state …which essentially means that the Court does not care why the marriage is being terminated. Therefore, the Court does not assign blame to Husband or to Wife. Neither party is “punished” by the Court for any transgression that might have occurred during the marriage. “No Fault Divorce” has been defined as follows: “A marriage/dissolution system whereby a divorce or dissolution is granted without the necessity of proving one of the parties is guilty of marital misconduct.”
Essentially, I can assert that Husband has been guilty of gross neglect of duty and extreme cruelty to include an adulterous affair with Jane Doe in my client’s Complaint for Divorce; but I am not bound to “prove” that the adultery took place by evidence of motel receipts, photos taken at a motel, etc., or testimony regarding the alleged affair, etc. Years ago, those allegations had to be proven by evidentiary proceedings! Those were the “Victorian days” when private investigators were hired to follow Husband or Wife to see what was really “going on” between Spouse and alleged Significant Other. The fact that we have become a “no fault” state has led to a loss of revenue for companies doing private investigating work. But, the change has simplified the work of attorneys practicing Family Law. The vast majority of cases are finalized on the no-fault basis of “irreconcilable differences” or “incompatibility.”
Our task has changed from assigning blame or fault for the demise of the marriage to essentially being responsible for verifying the marital assets and liabilities acquired during the marriage. The essential questions asked by the Court – What assets did this couple acquire during their marriage? What liabilities did this couple acquire during their marriage? How are we going to divide those assets and liabilities?
The relevant factors to be considered by the trial court in making a division of marital property are (1) the duration of the marriage, (2) the assets and liabilities of the spouses, (3) the desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage, (4) the liquidity of the property to be distributed, (5) the economic desirability of retaining intact an asset or an interest in an asset, (6) the tax consequences of the property division upon the respective awards to be made to each spouse, (7) the costs of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property, (8) any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses, and (9) any other factor that the court expressly finds to be relevant and equitable. R.C. 3105.171(F)(1) through (9). Since there are a number of specifically enumerated items under R.C. 3105.18 to be considered by a trial court on this issue, the typical approach by courts is to avoid placing a significant or disproportionate weight on the relative fault factor in such an analysis and determination. There is a perceptible tendency, on the part of the courts today, to minimize dividing property in a manner which rewards virtue and punishes evil.
In a “no fault” divorce state as Ohio is, the partner who abided by the vows of marriage is not “rewarded” for being true to marriage vows and the partner who did not abide by vows of marriage is not “punished” for same. The legislature did not include marital fault among the relevant factors listed in the Spousal Support statute, R.C. 3105.18(B). Fault is no longer an appropriate or significant consideration in the division or property of granting of alimony. Generally, the division of marital property is to be equal, unless an equal division would produce an inequitable result. R.C. 3105.171(C). In such a case, marital property is to be divided on an equitable basis. However, even a 50-50 property division may, in certain instances, result in one party profiting at the expense of the other. This is why the Ohio Supreme Court has stated it is ill-advised and impossible for any court to set down a flat rule concerning property division upon divorce. A trial court must have discretion to do what is equitable upon the facts and circumstances of each case.
Therefore, unless the injured or aggrieved partner is able to “prove” financial misconduct and direct transfers of marital assets to the “significant other” or dissipation of assets for non-marital purposes, the assets and the liabilities of the parties will be divided in an equal manner so long as the final result is not inequitable. While the fault factor in a divorce proceeding is not entirely irrelevant, it is not typically a significant factor which will be considered by the court for division of property and sustenance purposes.
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Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.