As Passed by the House

128th General Assembly Regular Session 2009-2010

Am. H. B. No. 244

Representative Harwood 

Cosponsors: Representatives Harris, Yuko, Murray, Huffman, Phillips, Stebelton, Letson, Bacon, Beck, Belcher, Blessing, Bolon, Boyd, Brown, Bubp, Carney, Celeste, Chandler, Coley, Combs, DeBose, Domenick, Driehaus, Dyer, Evans, Fende, Foley, Garland, Garrison, Grossman, Hackett, Hagan, Hottinger, Lehner, Luckie, Mallory, Mandel, McClain, Moran, Newcomb, Oelslager, Patten, Pillich, Pryor, Snitchler, Stewart, Szollosi, Uecker, Weddington, Williams, B., Winburn, Yates 

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A BILL

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

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

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 to the modification.	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
the children, to the designation fof a residential parent and	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