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| To amend sections 3105.171, 3105.63, and 3105.65 of | 1 |
| the Revised Code to permit a court to modify a | 2 |
| division of property in a divorce decree or decree | 3 |
| of dissolution of marriage upon the express | 4 |
| written consent or agreement of both spouses. | 5 |
| Section 1. That sections 3105.171, 3105.63, and 3105.65 of | 6 |
| the Revised Code be amended to read as follows: | 7 |
| Sec. 3105.171. (A) As used in this section: | 8 |
| (1) "Distributive award" means any payment or payments, in | 9 |
| real or personal property, that are payable in a lump sum or over | 10 |
| time, in fixed amounts, that are made from separate property or | 11 |
| income, and that are not made from marital property and do not | 12 |
| constitute payments of spousal support, as defined in section | 13 |
| 3105.18 of the Revised Code. | 14 |
| (2) "During the marriage" means whichever of the following is | 15 |
| applicable: | 16 |
| (a) Except as provided in division (A)(2)(b) of this section, | 17 |
| the period of time from the date of the marriage through the date | 18 |
| of the final hearing in an action for divorce or in an action for | 19 |
| legal separation; | 20 |
| (b) If the court determines that the use of either or both of | 21 |
| the dates specified in division (A)(2)(a) of this section would be | 22 |
| inequitable, the court may select dates that it considers | 23 |
| equitable in determining marital property. If the court selects | 24 |
| dates that it considers equitable in determining marital property, | 25 |
| "during the marriage" means the period of time between those dates | 26 |
| selected and specified by the court. | 27 |
| (3)(a) "Marital property" means, subject to division | 28 |
| (A)(3)(b) of this section, all of the following: | 29 |
| (i) All real and personal property that currently is owned by | 30 |
| either or both of the spouses, including, but not limited to, the | 31 |
| retirement benefits of the spouses, and that was acquired by | 32 |
| either or both of the spouses during the marriage; | 33 |
| (ii) All interest that either or both of the spouses | 34 |
| currently has in any real or personal property, including, but not | 35 |
| limited to, the retirement benefits of the spouses, and that was | 36 |
| acquired by either or both of the spouses during the marriage; | 37 |
| (iii) Except as otherwise provided in this section, all | 38 |
| income and appreciation on separate property, due to the labor, | 39 |
| monetary, or in-kind contribution of either or both of the spouses | 40 |
| that occurred during the marriage; | 41 |
| (iv) A participant account, as defined in section 148.01 of | 42 |
| the Revised Code, of either of the spouses, to the extent of the | 43 |
| following: the moneys that have been deferred by a continuing | 44 |
| member or participating employee, as defined in that section, and | 45 |
| that have been transmitted to the Ohio public employees deferred | 46 |
| compensation board during the marriage and any income that is | 47 |
| derived from the investment of those moneys during the marriage; | 48 |
| the moneys that have been deferred by an officer or employee of a | 49 |
| municipal corporation and that have been transmitted to the | 50 |
| governing board, administrator, depository, or trustee of the | 51 |
| deferred compensation program of the municipal corporation during | 52 |
| the marriage and any income that is derived from the investment of | 53 |
| those moneys during the marriage; or the moneys that have been | 54 |
| deferred by an officer or employee of a government unit, as | 55 |
| defined in section 148.06 of the Revised Code, and that have been | 56 |
| transmitted to the governing board, as defined in that section, | 57 |
| during the marriage and any income that is derived from the | 58 |
| investment of those moneys during the marriage. | 59 |
| (b) "Marital property" does not include any separate | 60 |
| property. | 61 |
| (4) "Passive income" means income acquired other than as a | 62 |
| result of the labor, monetary, or in-kind contribution of either | 63 |
| spouse. | 64 |
| (5) "Personal property" includes both tangible and intangible | 65 |
| personal property. | 66 |
| (6)(a) "Separate property" means all real and personal | 67 |
| property and any interest in real or personal property that is | 68 |
| found by the court to be any of the following: | 69 |
| (i) An inheritance by one spouse by bequest, devise, or | 70 |
| descent during the course of the marriage; | 71 |
| (ii) Any real or personal property or interest in real or | 72 |
| personal property that was acquired by one spouse prior to the | 73 |
| date of the marriage; | 74 |
| (iii) Passive income and appreciation acquired from separate | 75 |
| property by one spouse during the marriage; | 76 |
| (iv) Any real or personal property or interest in real or | 77 |
| personal property acquired by one spouse after a decree of legal | 78 |
| separation issued under section 3105.17 of the Revised Code; | 79 |
| (v) Any real or personal property or interest in real or | 80 |
| personal property that is excluded by a valid antenuptial | 81 |
| agreement; | 82 |
| (vi) Compensation to a spouse for the spouse's personal | 83 |
| injury, except for loss of marital earnings and compensation for | 84 |
| expenses paid from marital assets; | 85 |
| (vii) Any gift of any real or personal property or of an | 86 |
| interest in real or personal property that is made after the date | 87 |
| of the marriage and that is proven by clear and convincing | 88 |
| evidence to have been given to only one spouse. | 89 |
| (b) The commingling of separate property with other property | 90 |
| of any type does not destroy the identity of the separate property | 91 |
| as separate property, except when the separate property is not | 92 |
| traceable. | 93 |
| (B) In divorce proceedings, the court shall, and in legal | 94 |
| separation proceedings upon the request of either spouse, the | 95 |
| court may, determine what constitutes marital property and what | 96 |
| constitutes separate property. In either case, upon making such a | 97 |
| determination, the court shall divide the marital and separate | 98 |
| property equitably between the spouses, in accordance with this | 99 |
| section. For purposes of this section, the court has jurisdiction | 100 |
| over all property, excluding the social security benefits of a | 101 |
| spouse other than as set forth in division (F)(9) of this section, | 102 |
| in which one or both spouses have an interest. | 103 |
| (C)(1) Except as provided in this division or division (E) of | 104 |
| this section, the division of marital property shall be equal. If | 105 |
| an equal division of marital property would be inequitable, the | 106 |
| court shall not divide the marital property equally but instead | 107 |
| shall divide it between the spouses in the manner the court | 108 |
| determines equitable. In making a division of marital property, | 109 |
| the court shall consider all relevant factors, including those set | 110 |
| forth in division (F) of this section. | 111 |
| (2) Each spouse shall be considered to have contributed | 112 |
| equally to the production and acquisition of marital property. | 113 |
| (3) The court shall provide for an equitable division of | 114 |
| marital property under this section prior to making any award of | 115 |
| spousal support to either spouse under section 3105.18 of the | 116 |
| Revised Code and without regard to any spousal support so awarded. | 117 |
| (4) If the marital property includes a participant account, | 118 |
| as defined in section 148.01 of the Revised Code, the court shall | 119 |
| not order the division or disbursement of the moneys and income | 120 |
| described in division (A)(3)(a)(iv) of this section to occur in a | 121 |
| manner that is inconsistent with the law, rules, or plan governing | 122 |
| the deferred compensation program involved or prior to the time | 123 |
| that the spouse in whose name the participant account is | 124 |
| maintained commences receipt of the moneys and income credited to | 125 |
| the account in accordance with that law, rules, and plan. | 126 |
| (D) Except as otherwise provided in division (E) of this | 127 |
| section or by another provision of this section, the court shall | 128 |
| disburse a spouse's separate property to that spouse. If a court | 129 |
| does not disburse a spouse's separate property to that spouse, the | 130 |
| court shall make written findings of fact that explain the factors | 131 |
| that it considered in making its determination that the spouse's | 132 |
| separate property should not be disbursed to that spouse. | 133 |
| (E)(1) The court may make a distributive award to facilitate, | 134 |
| effectuate, or supplement a division of marital property. The | 135 |
| court may require any distributive award to be secured by a lien | 136 |
| on the payor's specific marital property or separate property. | 137 |
| (2) The court may make a distributive award in lieu of a | 138 |
| division of marital property in order to achieve equity between | 139 |
| the spouses, if the court determines that a division of the | 140 |
| marital property in kind or in money would be impractical or | 141 |
| burdensome. | 142 |
| (3) If a spouse has engaged in financial misconduct, | 143 |
| including, but not limited to, the dissipation, destruction, | 144 |
| concealment, or fraudulent disposition of assets, the court may | 145 |
| compensate the offended spouse with a distributive award or with a | 146 |
| greater award of marital property. | 147 |
| (F) In making a division of marital property and in | 148 |
| determining whether to make and the amount of any distributive | 149 |
| award under this section, the court shall consider all of the | 150 |
| following factors: | 151 |
| (1) The duration of the marriage; | 152 |
| (2) The assets and liabilities of the spouses; | 153 |
| (3) The desirability of awarding the family home, or the | 154 |
| right to reside in the family home for reasonable periods of time, | 155 |
| to the spouse with custody of the children of the marriage; | 156 |
| (4) The liquidity of the property to be distributed; | 157 |
| (5) The economic desirability of retaining intact an asset or | 158 |
| an interest in an asset; | 159 |
| (6) The tax consequences of the property division upon the | 160 |
| respective awards to be made to each spouse; | 161 |
| (7) The costs of sale, if it is necessary that an asset be | 162 |
| sold to effectuate an equitable distribution of property; | 163 |
| (8) Any division or disbursement of property made in a | 164 |
| separation agreement that was voluntarily entered into by the | 165 |
| spouses; | 166 |
| (9) Any retirement benefits of the spouses, excluding the | 167 |
| social security benefits of a spouse except as may be relevant for | 168 |
| purposes of dividing a public pension; | 169 |
| (10) Any other factor that the court expressly finds to be | 170 |
| relevant and equitable. | 171 |
| (G) In any order for the division or disbursement of property | 172 |
| or a distributive award made pursuant to this section, the court | 173 |
| shall make written findings of fact that support the determination | 174 |
| that the marital property has been equitably divided and shall | 175 |
| specify the dates it used in determining the meaning of "during | 176 |
| the marriage." | 177 |
| (H) Except as otherwise provided in this section, the holding | 178 |
| of title to property by one spouse individually or by both spouses | 179 |
| in a form of co-ownership does not determine whether the property | 180 |
| is marital property or separate property. | 181 |
| (I) A division or disbursement of property or a distributive | 182 |
| award made under this section is not subject to future | 183 |
| modification by the court except upon the express written consent | 184 |
| or agreement of both spouses. | 185 |
| (J) The court may issue any orders under this section that it | 186 |
| determines equitable, including, but not limited to, either of the | 187 |
| following types of orders: | 188 |
| (1) An order granting a spouse the right to use the marital | 189 |
| dwelling or any other marital property or separate property for | 190 |
| any reasonable period of time; | 191 |
| (2) An order requiring the sale or encumbrancing of any real | 192 |
| or personal property, with the proceeds from the sale and the | 193 |
| funds from any loan secured by the encumbrance to be applied as | 194 |
| determined by the court. | 195 |
| Sec. 3105.63. (A)(1) A petition for dissolution of marriage | 196 |
| shall be signed by both spouses and shall have attached and | 197 |
| incorporated a separation agreement agreed to by both spouses. The | 198 |
| separation agreement shall provide for a division of all property; | 199 |
| spousal support; if there are minor children of the marriage, the | 200 |
| allocation of parental rights and responsibilities for the care of | 201 |
| the minor children, the designation of a residential parent and | 202 |
| legal custodian of the minor children, child support, and | 203 |
| parenting time rights; and, if the spouses so desire, an | 204 |
| authorization for the court to modify the amount or terms of | 205 |
| spousal support, or the division of property, provided in the | 206 |
| separation agreement. If there are minor children of the marriage, | 207 |
| the spouses may address the allocation of the parental rights and | 208 |
| responsibilities for the care of the minor children by including | 209 |
| in the separation agreement a plan under which both parents will | 210 |
| have shared rights and responsibilities for the care of the minor | 211 |
| children. The spouses shall file the plan with the petition for | 212 |
| dissolution of marriage and shall include in the plan the | 213 |
| provisions described in division (G) of section 3109.04 of the | 214 |
| Revised Code. | 215 |
| (2) The division of property in the separation agreement | 216 |
| shall include any participant account, as defined in section | 217 |
| 148.01 of the Revised Code, of either of the spouses, to the | 218 |
| extent of the following: | 219 |
| (a) The moneys that have been deferred by a continuing member | 220 |
| or participating employee, as defined in that section, and that | 221 |
| have been transmitted to the Ohio public employees deferred | 222 |
| compensation board during the marriage and any income that is | 223 |
| derived from the investment of those moneys during the marriage; | 224 |
| (b) The moneys that have been deferred by an officer or | 225 |
| employee of a municipal corporation and that have been transmitted | 226 |
| to the governing board, administrator, depository, or trustee of | 227 |
| the deferred compensation program of the municipal corporation | 228 |
| during the marriage and any income that is derived from the | 229 |
| investment of those moneys during the marriage; | 230 |
| (c) The moneys that have been deferred by an officer or | 231 |
| employee of a government unit, as defined in section 148.06 of the | 232 |
| Revised Code, and that have been transmitted to the governing | 233 |
| board, as defined in that section, during the marriage and any | 234 |
| income that is derived from the investment of those moneys during | 235 |
| the marriage. | 236 |
| (3) The separation agreement shall not require or permit the | 237 |
| division or disbursement of the moneys and income described in | 238 |
| division (A)(2) of this section to occur in a manner that is | 239 |
| inconsistent with the law, rules, or plan governing the deferred | 240 |
| compensation program involved or prior to the time that the spouse | 241 |
| in whose name the participant account is maintained commences | 242 |
| receipt of the moneys and income credited to the account in | 243 |
| accordance with that law, rules, and plan. | 244 |
| (B) An amended separation agreement may be filed at any time | 245 |
| prior to or during the hearing on the petition for dissolution of | 246 |
| marriage. Upon receipt of a petition for dissolution of marriage, | 247 |
| the court may cause an investigation to be made pursuant to the | 248 |
| Rules of Civil Procedure. | 249 |
| (C)(1) If a petition for dissolution of marriage contains an | 250 |
| authorization for the court to modify the amount or terms of | 251 |
| spousal support provided in the separation agreement, the | 252 |
| modification shall be in accordance with section 3105.18 of the | 253 |
| Revised Code. | 254 |
| (2) If a petition for dissolution of marriage contains an | 255 |
| authorization for the court to modify the division of property | 256 |
| provided in the separation agreement, the modification shall be | 257 |
| made with the express written consent or agreement of both | 258 |
| spouses. | 259 |
| Sec. 3105.65. (A) If, at the time of the hearing, either | 260 |
| spouse is not satisfied with the separation agreement or does not | 261 |
| wish a dissolution of the marriage and if neither spouse files a | 262 |
| motion pursuant to division (C) of this section to convert the | 263 |
| action to an action for divorce, the court shall dismiss the | 264 |
| petition and refuse to validate the proposed separation agreement. | 265 |
| (B) If, upon review of the testimony of both spouses and of | 266 |
| the report of the investigator pursuant to the Rules of Civil | 267 |
| Procedure, the court approves the separation agreement and any | 268 |
| amendments to it agreed upon by the parties, it shall grant a | 269 |
| decree of dissolution of marriage that incorporates the separation | 270 |
| agreement. If the separation agreement contains a plan for the | 271 |
| exercise of shared parenting by the spouses, the court shall | 272 |
| review the plan in accordance with the provisions of division | 273 |
| (D)(1) of section 3109.04 of the Revised Code that govern the | 274 |
| review of a pleading or motion requesting shared parenting jointly | 275 |
| submitted by both spouses to a marriage. A decree of dissolution | 276 |
| of marriage has the same effect upon the property rights of the | 277 |
| parties, including rights of dower and inheritance, as a decree of | 278 |
| divorce. The court has full power to enforce its decree and | 279 |
| retains jurisdiction to modify all matters pertaining to the | 280 |
| allocation of parental rights and responsibilities for the care of | 281 |
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the children, to the designation
| 282 |
| legal custodian of the children, to child support, to parenting | 283 |
| time of parents with the children, and to visitation for persons | 284 |
| who are not the children's parents. The court, only in accordance | 285 |
| with division (E)(2) of section 3105.18 of the Revised Code, may | 286 |
| modify the amount or terms of spousal support. The court may | 287 |
| modify the division of property provided in the separation | 288 |
| agreement only upon the express written consent or agreement of | 289 |
| both spouses. | 290 |
| (C) At any time before a decree of dissolution of marriage | 291 |
| has been granted under division (B) of this section, either spouse | 292 |
| may convert the action for dissolution of marriage into a divorce | 293 |
| action by filing a motion with the court in which the action for | 294 |
| dissolution of marriage is pending for conversion of the action | 295 |
| for dissolution of marriage. The motion shall contain a complaint | 296 |
| for divorce that contains grounds for a divorce and that otherwise | 297 |
| complies with the Rules of Civil Procedure and this chapter. The | 298 |
| divorce action then shall proceed in accordance with the Rules of | 299 |
| Civil Procedure in the same manner as if the motion had been the | 300 |
| original complaint in the action, including, but not limited to, | 301 |
| the issuance and service of summons pursuant to Civil Rules 4 to | 302 |
| 4.6, except that no court fees shall be charged upon conversion of | 303 |
| the action for dissolution of marriage into a divorce action under | 304 |
| this division. | 305 |
| Section 2. That existing sections 3105.171, 3105.63, and | 306 |
| 3105.65 of the Revised Code are hereby repealed. | 307 |