In a divorce does the issue of the duration of a marriage have an effect on alimony, asset and debt allocation? The answer is a resounding yes. The commencement date of a marriage is an important determination to be made by the Court during a divorce because the duration of a marriage can have an effect on what the Court considers to be marital property and how the Court calculates spousal support.
The Ohio Revised Code under section 3105.171(A) defines the duration of a marriage for purposes of the equitable division of marital and separate property as “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.” However, “if the court determines that the use of either or both of the dates…would be inequitable, the court may select dates that it considers equitable in determining marital property.”
Essentially, this section of the Ohio statute opens the door for a court to choose an alternate date for the start of a marriage for the purposes of dividing marital assets and debts, or calculating spousal support.
The issue of the duration of a marriage recently came to the forefront in Ohio in a decision by the Eight Appellate District in the case of Nadim Al-Mubarak v. Wafae Chraibi. In that case, a Muslim couple took part in a religious ceremony of marriage in New York in 2001, however, the imam performing the marriage did not complete the ceremony because the couple did not obtain a marriage license. The couple continued with a marriage celebration despite not obtaining the license, and began living together, holding themselves out as husband and wife, and eventually starting a family. The husband acted as the income earner for the family, and the wife quit her job and acted as a family homemaker. The couple eventually moved to Ohio and legally married in 2010, but filed for divorce shortly thereafter.
Under the Ohio statute, the Court found that it would be equitable, for the purposes of the division of the couple’s assets and the determination of spousal support, that the marriage commencement date was 2001 when the couple began living and acting as a married couple.
There is a split among Ohio’s Appellate Districts regarding the issue of the duration of marriage. In the Ninth Appellate District, the Court found in Ward v. Ward that a “determination that a marriage commenced prior to the ceremonial date of the marriage is improper and would effectively resurrect common law marriages after the legislature abolished them in 1991.”
This issue may prove to be especially divisive when it comes to LGBT couples who have been in extended relationships, or have acted as a married couple for an extended amount of time. For example, if a gay couple held themselves out as a married couple for ten years before being able to legally marry in Ohio, they may face the same issue with the duration of their marriage. Depending on the Appellate District in Ohio, a Court could hold that the couple’s equitable date of marriage is the date in which they began living together and acting as a married couple. Thus, a divorcing gay couple could be facing radically different calculations for the division of marital property and spousal support.
Therefore, it is extremely important that divorcing couples understand the issue of the duration of their marriage. If you think you may be facing these issues, contact our office for a free consultation.