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H. B. No. 244 As IntroducedAs Introduced
128th General Assembly | Regular Session | 2009-2010 |
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Cosponsors:
Representatives Harris, Yuko, Murray, Huffman, Phillips, Stebelton, Letson
A BILL
To amend sections 3105.171, 3105.63, and 3105.65 of
the Revised Code to permit a court to modify a
division of property in a divorce decree or decree
of dissolution of marriage upon the express
written consent or agreement of both spouses.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3105.171, 3105.63, and 3105.65 of
the Revised Code be amended to read as follows:
Sec. 3105.171. (A) As used in this section:
(1) "Distributive award" means any payment or payments, in
real or personal property, that are payable in a lump sum or over
time, in fixed amounts, that are made from separate property or
income, and that are not made from marital property and do not
constitute payments of spousal support, as defined in section
3105.18 of the Revised Code.
(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.
(3)(a) "Marital property" means, subject to division
(A)(3)(b) of this section, all of the following:
(i) All real and personal property that currently is owned
by
either or both of the spouses, including, but not limited to,
the
retirement benefits of the spouses, and that was acquired by
either or both of the spouses during the marriage;
(ii) All interest that either or both of the spouses
currently has in any real or personal property, including, but
not
limited to, the retirement benefits of the spouses, and that
was
acquired by either or both of the spouses during the
marriage;
(iii) Except as otherwise provided in this section, all
income and appreciation on separate property, due to the labor,
monetary, or in-kind contribution of either or both of the
spouses
that occurred during the marriage;
(iv) A participant account, as defined in section
148.01
of
the Revised Code, of either of the spouses, to the extent of
the
following: the moneys that have been deferred by a
continuing
member or participating employee, as defined in that
section, and
that have been transmitted to the Ohio public
employees deferred
compensation board during the marriage and any
income that is
derived from the investment of those moneys during
the marriage;
the moneys that have been deferred by an officer or
employee of a
municipal corporation and that have been
transmitted to the
governing board, administrator, depository, or
trustee of the
deferred compensation program of the municipal
corporation during
the marriage and any income that is derived
from the investment of
those moneys during the marriage; or the
moneys that have been
deferred by an officer or employee of a
government unit, as
defined in section 148.06 of the
Revised
Code, and that have been
transmitted to the governing board, as
defined in that section,
during the marriage and any income that
is derived from the
investment of those moneys during the
marriage.
(b) "Marital property" does not include any separate
property.
(4) "Passive income" means income acquired other than as a
result of the labor, monetary, or in-kind contribution of either
spouse.
(5) "Personal property" includes both tangible and
intangible
personal property.
(6)(a) "Separate property" means all real and personal
property and any interest in real or personal property that is
found by the court to be any of the following:
(i) An inheritance by one spouse by bequest, devise, or
descent during the course of the marriage;
(ii) Any real or personal property or interest in real or
personal property that was acquired by one spouse prior to the
date of the marriage;
(iii) Passive income and appreciation acquired from
separate
property by one spouse during the marriage;
(iv) Any real or personal property or interest in real or
personal property acquired by one spouse after a decree of legal
separation issued under section 3105.17 of the Revised Code;
(v) Any real or personal property or interest in real or
personal property that is excluded by a valid antenuptial
agreement;
(vi) Compensation to a spouse for the spouse's personal
injury, except for loss of marital earnings and compensation for
expenses paid from marital assets;
(vii) Any gift of any real or personal property or of an
interest in real or personal property that is made after the date
of the marriage and that is proven by clear and convincing
evidence to have been given to only one spouse.
(b) The commingling of separate property with other
property
of any type does not destroy the identity of the
separate property
as separate property, except when the separate
property is not
traceable.
(B) In divorce proceedings, the court shall, and in legal
separation proceedings upon the request of either spouse, the
court may, determine what constitutes marital property and what
constitutes separate property. In either case, upon making such
a
determination, the court shall divide the marital and separate
property equitably between the spouses, in accordance with this
section. For purposes of this section, the court has
jurisdiction
over all property, excluding the social security benefits of a
spouse other than as set forth in division (F)(9) of this section,
in which one or both spouses have
an interest.
(C)(1) Except as provided in this division or division (E)
of
this section, the division of marital property shall be equal.
If
an equal division of marital property would be inequitable,
the
court shall not divide the marital property equally but
instead
shall divide it between the spouses in the manner the
court
determines equitable. In making a division of marital
property,
the court shall consider all relevant factors,
including those set
forth in division (F) of this section.
(2) Each spouse shall be considered to have contributed
equally to the production and acquisition of marital property.
(3) The court shall provide for an equitable division of
marital property under this section prior to making any award of
spousal support to either spouse under section 3105.18 of the
Revised Code and without regard to any spousal support so
awarded.
(4) If the marital property includes a participant
account,
as defined in section 148.01 of the Revised
Code, the
court shall
not order the division or disbursement of the moneys
and income
described in division (A)(3)(a)(iv) of this section to
occur in a
manner that is inconsistent with the law, rules, or
plan governing
the deferred compensation program involved or
prior to the time
that the spouse in whose name the participant
account is
maintained commences receipt of the moneys and income
credited to
the account in accordance with that law, rules, and
plan.
(D) Except as otherwise provided in division (E) of this
section or by another provision of this section, the court shall
disburse a spouse's separate property to that spouse. If a court
does not disburse a spouse's separate property to that spouse,
the
court shall make written findings of fact that explain the
factors
that it considered in making its determination that the
spouse's
separate property should not be disbursed to that
spouse.
(E)(1) The court may make a distributive award to
facilitate,
effectuate, or supplement a division of marital
property. The
court may require any distributive award to be
secured by a lien
on the payor's specific marital property or
separate property.
(2) The court may make a distributive award in lieu of a
division of marital property in order to achieve equity between
the spouses, if the court determines that a division of the
marital property in kind or in money would be impractical or
burdensome.
(3) If a spouse has engaged in financial misconduct,
including, but not limited to, the dissipation, destruction,
concealment, or fraudulent disposition of assets, the court may
compensate the offended spouse with a distributive award or with
a
greater award of marital property.
(F) In making a division of marital property and in
determining whether to make and the amount of any distributive
award under this section, the court shall consider all of the
following factors:
(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;
(9) Any retirement benefits of the spouses, excluding the
social security benefits of a spouse except as may be relevant for
purposes of dividing a public pension;
(10) Any other factor that the court expressly finds to be
relevant and equitable.
(G) In any order for the division or disbursement of
property
or a distributive award made pursuant to this section,
the court
shall make written findings of fact that support the
determination
that the marital property has been equitably
divided and shall
specify the dates it used in determining the
meaning of "during
the marriage."
(H) Except as otherwise provided in this section, the
holding
of title to property by one spouse individually or by
both spouses
in a form of co-ownership does not determine whether
the property
is marital property or separate property.
(I) A division or disbursement of property or a
distributive
award made under this section is not subject to
future
modification by the court except upon the express written consent
or agreement of both spouses.
(J) The court may issue any orders under this section that
it
determines equitable, including, but not limited to, either of
the
following types of orders:
(1) An order granting a spouse the right to use the
marital
dwelling or any other marital property or separate
property for
any reasonable period of time;
(2) An order requiring the sale or encumbrancing of any
real
or personal property, with the proceeds from the sale and
the
funds from any loan secured by the encumbrance to be applied
as
determined by the court.
Sec. 3105.63. (A)(1) A petition for dissolution of
marriage
shall be signed by both spouses and shall have attached
and
incorporated a separation agreement agreed to by both
spouses. The
separation agreement shall provide for a division
of all property;
spousal support; if there are minor children of
the marriage, the
allocation of parental rights and
responsibilities for the care of
the minor children, the
designation of a residential parent and
legal custodian of the
minor children, child support, and
parenting time
rights; and, if the
spouses so desire, an
authorization for the court to modify the
amount or terms of
spousal support, or the division of property, provided in the
separation
agreement. If there are minor children of the marriage,
the
spouses may address the allocation of the parental rights and
responsibilities for the care of the minor children by including
in the separation agreement a plan under which both parents will
have shared rights and responsibilities for the care of the minor
children. The spouses shall file the plan with the petition for
dissolution of marriage and shall include in the plan the
provisions described in division (G) of section 3109.04 of the
Revised Code.
(2) The division of property in the separation agreement
shall include any participant account, as defined in section
148.01 of the Revised Code, of either of the spouses,
to the
extent of the following:
(a) The moneys that have been deferred by a continuing
member
or participating employee, as defined in that section, and
that
have been transmitted to the Ohio public employees deferred
compensation board during the marriage and any income that is
derived from the investment of those moneys during the marriage;
(b) The moneys that have been deferred by an officer or
employee of a municipal corporation and that have been
transmitted
to the governing board, administrator, depository, or
trustee of
the deferred compensation program of the municipal
corporation
during the marriage and any income that is derived
from the
investment of those moneys during the marriage;
(c) The moneys that have been deferred by an officer or
employee of a government unit, as defined in section
148.06 of
the
Revised Code, and that have been transmitted to the governing
board, as defined in that section, during the marriage and any
income that is derived from the investment of those moneys during
the marriage.
(3) The separation agreement shall not require or permit
the
division or disbursement of the moneys and income described
in
division (A)(2) of this section to occur in a manner that is
inconsistent with the law, rules, or plan governing the deferred
compensation program involved or prior to the time that the
spouse
in whose name the participant account is maintained
commences
receipt of the moneys and income credited to the
account in
accordance with that law, rules, and plan.
(B) An amended separation agreement may be filed at any
time
prior to or during the hearing on the petition for
dissolution of
marriage. Upon receipt of a petition for
dissolution of marriage,
the court may cause an investigation to
be made pursuant to the
Rules of Civil Procedure.
(C)(1) If a petition for dissolution of marriage contains an
authorization for the court to modify the amount or terms of
spousal support provided in the separation agreement, the
modification shall be in accordance with section 3105.18 of the
Revised Code.
(2) If a petition for dissolution of marriage contains an
authorization for the court to modify the division of property
provided in the separation agreement, the modification shall be
made with the express written consent or agreement of both
spouses.
Sec. 3105.65. (A) If, at the time of the hearing, either
spouse is not satisfied with the separation agreement or does not
wish a dissolution of the marriage and if neither spouse files a
motion pursuant to division (C) of this section to convert the
action to an action for divorce, the court shall dismiss the
petition and refuse to validate the proposed separation
agreement.
(B) If, upon review of the testimony of both spouses and
of
the report of the investigator pursuant to the Rules of Civil
Procedure, the court approves the separation agreement and any
amendments to it agreed upon by the parties, it shall grant a
decree of dissolution of marriage that incorporates the
separation
agreement. If the separation agreement contains a
plan for the
exercise of shared parenting by the spouses, the
court shall
review the plan in accordance with the provisions of
division
(D)(1) of section 3109.04 of the Revised Code that
govern the
review of a pleading or motion requesting shared
parenting jointly
submitted by both spouses to a marriage. A
decree of dissolution
of marriage has the same effect upon the
property rights of the
parties, including rights of dower and
inheritance, as a decree of
divorce. The court has full power to
enforce its decree and
retains jurisdiction to modify all matters
pertaining to the
allocation of parental rights and
responsibilities for the care of
the children, to the designation
f
of a residential parent and
legal
custodian of the children, to
child support, to parenting
time of
parents with the children,
and to
visitation for persons
who are
not the children's parents. The court,
only in accordance
with
division (E)(2) of section 3105.18 of the Revised Code, may
modify
the amount or terms of spousal support. The court may
modify the division of property provided in the separation
agreement only upon the express written consent or agreement of
both spouses.
(C) At any time before a decree of dissolution of marriage
has been granted under division (B) of this section, either
spouse
may convert the action for dissolution of marriage into a
divorce
action by filing a motion with the court in which the
action for
dissolution of marriage is pending for conversion of
the action
for dissolution of marriage. The motion shall contain
a complaint
for divorce that contains grounds for a divorce and
that otherwise
complies with the Rules of Civil Procedure and
this chapter. The
divorce action then shall proceed in
accordance with the Rules of
Civil Procedure in the same manner
as if the motion had been the
original complaint in the action,
including, but not limited to,
the issuance and service of
summons pursuant to Civil Rules 4 to
4.6, except that no court
fees shall be charged upon conversion of
the action for
dissolution of marriage into a divorce action under
this
division.
Section 2. That existing sections 3105.171, 3105.63, and
3105.65 of the Revised Code are hereby repealed.
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