Q: I’ve been living with someone for ten years, and now we’re splitting up. Can we use a divorce court to divide our assets and debts, even though we aren’t married?
A: No. If you are not married, Ohio law does not give you the right to stand in front of a court and request an equal or equitable division of your property. The legislature has passed laws governing equitable and equal division of separate and joint property for married couples, but no such statute governs how to determine what is equitable when dividing property between co-habitants.
Q: Since we’ve lived together for so long, might we be considered to have a common law marriage?
A: No. Common law marriage is no longer recognized in Ohio. Ohio law recognizes common law marriage only if it occurred before October 10, 1991 and was not ended by death, divorce, dissolution of marriage or annulment. However, Ohio will recognize a common law marriage if it was proper under the laws of another state for people who are now meeting all of Ohio’s residency requirements.
Q: Is there a way we can divide our real property, even though we were never married?
A: Yes. Most people hold their real property as “tenants in common” (meaning that they own it together) or as “tenants with the right of survivorship” (meaning, generally, that they own it jointly, and the entire property passes to one of them on the death of the other person). If you own property jointly as tenants in common, then one of you may wish to buy out the other. However, if you do not wish to do this or cannot agree on the price, you can file a civil action in a civil common pleas court. This is called a “partition action.” The court will consider the property appraisals and the interests of both parties, and decide who should have the property by the partition action. A partition action can be brought if you cannot end your relationship by selling or transferring your interest in the property to each other or to a third party. Also, if the property is not paid for, your interest can be lost, either through the partition action or through a foreclosure action.
Q: The person I’ve lived with for ten years will not return my personal property. Does Ohio law address this issue even though we’re not married?
A: Yes. If the other party is holding your personal property and will not release it, you can bring suit in municipal court requesting the return of your personal property. You must, however, be able to prove the suit by evidence such as other witnesses who know you owned the property, receipts for purchase, cancelled checks and such other evidence to show that it is your personal property
Q: Can I sue my partner if she reneged on her promise to marry me?
A: No. One co-habitant cannot sue another based only on the promise to marry. If you have lost property or have transferred property based on that promise, you can try to get the value of the property or the property back, but you cannot claim any “damages” (compensation for the injury your partner caused you) based on the promise alone.
Q: Does Ohio have a Defense of Marriage Act?
A: Yes. Ohio’s Defense of Marriage Act was passed on Nov. 2, 2005. This act effectively changed Ohio’s constitution to define marriage as a contract between one man and one woman. Article XV, paragraph 11 of Ohio’s constitution says that “the state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or affect of marriage.”
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Dayton attorney James R. Kirkland of Kirkland & Sommers, Co., L.P.A.