Can marital interests in property ever be declared to have existed before the actual date of marriage in Ohio? The answer is “yes” if it would be “inequitable” to decide otherwise.
Every so often we have someone call in talking about the fact that they were living with their husband or wife for a number of years before marriage and wanting to get rights to OR credit on marital interests for property purchased or contributed to before the marriage actually occurred.
Courts treat this issue differently, depending upon the equities of the situation.
In Ohio, a court can establish what is known as a de facto date for the period of a marriage. What usually happens is that when the divorce starts, one of the parties states that the parties mutually separated and agreed to a divorce, separated the assets, accounts, etc., and have not been together in any manner since a certain date during the marriage. That party may ask that the court declare that the marriage was essentially over, so far as participation in property values is concerned, as of that date—the date of the separation—rather than as of the date of the final trial—which may be years later. This de facto date may affect the parties’ debt obligations (when one has run up a large amount of debt since the separation) and may affect their property rights, for instance when one of them has accumulated more property or the property has increased in value since the separation.
What about a de facto date from even before the parties were married? Is that possible? The answer is “yes, sometimes.” The two following cases illustrate two different outcomes based upon the “equities” of the situations.
Dach v. Homewood
When it comes to marital interests in property, the case of Dach v. Homewood, 2015-Ohio-4191, the 10th district Court of Appeals, in Franklin County, Ohio, comes to mind, as it had an appeal before it from the parties’ divorce.
The parties were married on June 1, 2004 and a divorce was filed on June 21 of 2010. The trial court issued an opinion as of September 28, 2012 granting the divorce, and after attempted appeals by both parties, the court divided all of the assets and the underlying case was finalized.
Numerous errors were assigned by both parties on their appeal, but the one of interest here is the wife’s claim of an error because the trial court found that the Ohio Constitution and R.C. 3105.12(B)(1)—an Ohio Statute—precluded the court from adopting a de facto date declaring that the marriage of the parties had actually “commenced” before the actual ceremonial marriage of the parties (per a motion filed by her). Her position was that she moved from Pennsylvania to Ohio with her son in 2001 and that she, her son, her daughter, born in 2002, and her future husband all lived together as a family until 2010.
The wife had also claimed that her husband’s business had increased in value up to a value of $15,000,000 before she left in 2010 and that she wanted some of the increase in value that had occurred before the ceremonial marriage of the parties.
The court had denied that motion, stating that it would essentially be granting a legal status akin to marriage for unmarried.
As the Court of Appeals noted:
R.C. 3105.171(A)(2) provides that a trial court may select a de facto date of marriage in order to equitably divide assets, as follows:
(2) “During the marriage” means whichever of the following is applicable:
(a) Except as provided in division (A)(2)(b) of this section, the period of time from the date of the marriage through the date of the final hearing in an action for divorce or in an action for legal separation;
(b) If the court determines that the use of either or both of the dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property. If the court selects dates that it considers equitable in determining marital property, “during the marriage” means the period of time between those dates selected and specified by the court.
The wife here argued that when the lower court stated that it could not declare that the marriage “asset division” date to be before the marriage, the Court of Appeals decided to “. . . address whether the trial court’s use of the parties’ ceremonial marriage date as the date the marriage commenced was an abuse of discretion.”
The Court of Appeals looked to the equitable considerations in the statute and quoted the portion of the statute which states, “If the court determines that the use of either or both dates specified in division (A)(2)(a) of this section would be inequitable, the court may select dates that it considers equitable in determining marital property.” The Court of Appeals then cited the fact that the trial court had decided that there was no inequity in the date it chose and the Court of Appeals stated that it would not overrule the lower court on its position on this “question of fact” regarding inequity.
The Court of Appeals went on to state that, “A statutory presumption exists that the duration of a marriage begins on the date of the ceremonial marriage through the date of the final divorce hearing . . . . Upon a finding of inequity, the trial court may select dates that it considers equitable in determining marital property.”
Bryan v. Bryan
One of the cases cited by the wife in support of her position was Bryan v. Bryan, 8th Dist. No. 97817, 2012-Ohio-3691. In Bryan, the parties were engaged and living together in 1988, but did not marry until 1994. After marriage, they used the wife’s income for living and saved most of the husband’s income for a down payment on a home. In that case, the trial court determined that it was inequitable to not consider the wife’s contribution for six years to save a down payment and the trial court set the de facto marriage commencement date as the date when they were engaged and moved in with each other. In that case, the appellate court did not find that the lower court had abused its discretion and so let the decision stand.
As one can see, when it comes to marital interests in property, it is possible to have the de facto termination date determined to be from even before two people were married so that they share in even “pre-marital” gains (and most likely debts, in our opinion). It all depends upon the equities.
William Geary is a family lawyer who has been practicing since 1979. He is admitted to practice before the Supreme Court of the United States, and also is a practicing member of the Ohio bar.