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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I am in the beginning process of a divorce. My wife agrees

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I am in the beginning process of a divorce.

My wife agrees to the process. We have been married for 5 years, no children inside or outside of the marriage, no shared assets, income $10kwhich we agreed to share. My gross income is 4 times hers and my net income is 2.5 hers, as I pay all the health care and insurance.

My wife is currently under-employed, part time, citing her health as a reason and the situation that her degrees are worthless in getting a job. She spends $6,000/yr on prescriptions. She doesn't job search much. We are representing ourselves and have all the necessary paperwork and procedures.

She claims she is entitled to half my 401k, me paying for her COBRA for 6 months, and a living stipend for a couple months or up to a year. I know various situations can incur different ways to split assets, but based on my situation, what is fair and correct per Ohio law?
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

She is NOT entitled to a full 1/2 of your 401K unless you established the 401K at the time of the marriage and not before marriage and the funds put into the account were all from during the time of the marriage. If that is not the case, then under OH law, she would only be entitled to 1/2 of the 5 years of marital funds put into the 401K which is considerably less than 1/2 of the entire 401K.

You also do not have to pay spousal support or COBRA for her based on this being a very short marriage of 5 years. At the most the court would order spousal support temporarily for usually not more than 5-12 months. So anything in that range you can agree upon would be fair.

If she is under employed, this could hurt her in court as this can be grounds for a court to refuse to award her support and she needs to understand that as well as it would be a bargaining power for you to negotiate to accept a little less if she is not willing to be reasonable.

As we do not know enough about your assets and cannot get that information in this forum, we cannot tell you exactly the amounts of support but in general it would be subtracting your net monthly income from her net and then 25%-50% of that difference for monthly temporary support.

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Customer: replied 3 years ago.

With our differences in income level, what amount of our debt should she take? I have read various places that it should be half - but she says it should be based on income level (and therefore she should take less).

Thank you for your follow up.

Generally, in OH, it is an "equitable distribution" state not community property. Equitable does not mean equal, whereas community property means 50-50 split. The OH courts start with the premise that they will try to divide it equally, but then deviate based on principles of equity as required. This means that typically they will add up the total net income and calculate the percentage of the total net income is from her income and that would be the percentage of debt she would be liable for..
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