Is my wife who I’m separated from entitled to part of a pension that I earned from a perilous employer 13 years before we met?
1 Answer from Attorneys
In Ohio, there are two issues. First, what do you mean by "separated"? There are four ways to terminate a marriage in Ohio. 1) Divorce 2) Dissolution 3) Separation 4) Annulment. Separation is remaining married in name only, but all rights between the parties to the marital assets and custody of the children (if any) is decided by order of the Court. You see this in cases where the religion of the parties does not allow for divorce, but yet the parties want a situation as much like a divorce as possible.
But if you are merely living separately from each other, having never filed anything to invoke the Court's jurisdiction over your marriage, then any new earnings from active efforts to bring in income will usually be seen as joint property to be split between the parties.
The second issue is what the court considers separate property and marital property. In Ohio, if you have secured an interest in property before the marriage, then the general rule is that such property is the separate property of the party who owned it before the marriage. But if the property became (through the process known as "transmutation") joint property of the marriage, then it could be joint property.
For example. If you owned a fully restored 1966 Ford Mustang before you were married to your spouse, then that would be separate property. But if you owned a broken down old hulk of a 1966 Ford Mustang and you and your spouse spent years of weekends and marital funds restoring it to showroom condition, then a strong argument could be made that the car, though starting off as separate property, has now transmutated into marital property.
With pensions or other investments, if they were purchased or otherwise acquired before the marriage, then they are separate property, and the increase in the value of the pensions, so long as no time or money was spent to increase the value of the pension or investment, will remain separate property. But the moment that any marital funds went into the pension, or if you had to do active work during the pension in order to increase its value, most Ohio Courts will value the pension as the time of marriage and say that all of that value is yours, but the increased value after the marriage is marital and must be split.
Again, if the pension goes up in value over time and you do nothing active to increase it, then the increase will probably be seen as separate property. For instance, the day before you get married, you buy 100 shares of Disney stock at 100 per share. You do nothing over the next ten years of marriage and it goes up to 400 per share, that increase is passive income and will likely be seen as remaining separate property.