The term marital property refers to assets and funds that were obtained over the course of a legal marriage. In the event of a divorce or separation, these assets and funds will be evaluated and split evenly between the divorcing spouses. Marital property may also be referred to as community property or shared property, depending on the state and jurisdiction. States generally have very different laws regarding defining and calculating marital property amounts.

Marital property and community property are essentially the same thing. States that recognize marital or community property typically split marital property evenly between the divorcing spouses. As previously mentioned, this is because marital property is owned by both spouses. These states begin the process with the strong assumption that anything acquired during the marriage is a community item. Thus, any spouse who claims property is separate property has the burden to prove their claim. 

The nine states that adhere to community property laws include:

  • Arizona;
  • California;
  • Idaho;
  • Louisiana;
  • Nevada;
  • New Mexico;
  • Texas;
  • Washington; and
  • Wisconsin. 

Marital property may also refer to property and assets obtained over the course of the marriage, but that have been specifically identified as separate property, and therefore not shared. An example of this would be a gift or an inheritance from a relatively that was specifically bestowed upon one spouse and was not given to the couple as a unit.

Common examples of shared property include:

  • The couple’s home, if it is in both of their names;
  • Any common or joint owned property;
  • Property acquired before the marriage, if the property was intended for couple’s common use or benefit; and
  • All earned income and property bought after the marriage began.

What Is Considered Separate Property?

Separate property refers to property and assets obtained before the marriage. As such, it cannot be divided upon separation or divorce. It is property that belongs to one person and is not subject to division by the court. In general, what is considered to be separate property includes the following:

  • Inheritances and gifts;
  • Heirlooms, or valuable items to be kept in the family, such as jewelry;
  • Property used wholly or principally for business purposes;
  • Property acquired under a trust;
  • Property that has been declared separate under an agreement, such as a prenuptial agreement; and
  • Property obtained with the proceeds of another separate property, and is not intended for the use or benefit of both parents.

Separate property determinations are made in court, and as such, any property considered to be separate property is not relevant to divorce proceedings. It is important to note that you must treat separate property as separate. This means that if you declare a home you owned before marriage as separate property, and you have made income from that home and are declaring the income to be separate income, then you cannot include that income with community property.

Additionally, separate property can be changed into community property, such as for tax benefits or simple convenience. This can be done through a prenuptial or postnuptial agreement, or through the legal process referred to as transmutation.

What is Equitable Division of Marital Property?

Some states follow equitable division of marital property principles. The court will attempt to divide the property in such a way that is most fair to each party involved. This is typically utilized by non-community property states. Courts will generally consider the following factors when dividing marital property equitably:

  • The existence of a prenuptial agreement;
  • The length of the marriage before filing for divorce or separation;
  • Each spouse’s age, employment, health, and financial assets;
  • The overall estate of each spouse;
  • Child custody or child support issues;
  • Whether one party will require spousal support; and
  • Whether there are any jointly or independently owned businesses, by one or both parties.

It is important to note that the goal of equitable division of marital property is not to divide the property equally. The goal is to achieve a fair and comprehensive result for the parties involved. One spouse may require or be entitled to more marital property than the other. The process could be considered to be more intuitive and less rigid than traditional means of separating property.

Courts may find equitable division to be necessary in certain circumstances. For example, if one of the spouses has special needs, they may be awarded ownership of certain property items if those items accommodate those needs. Further, if the marriage lasted a long time and one spouse served as the homemaker while the other spouse primarily earned income, the homemaker may require more assistance and property upon divorce. They might not have many opportunities to earn their own income after spending so many years outside of the workforce and will need the additional resources as support.

In general, equitable division is seen as an option or alternative, as opposed to being viewed as the default method for property division. Additionally, some jurisdictions may not allow any alternative methods, and will only utilize traditional methods of marital property division.

Do I Need an Attorney for Help with Marital Property Issues?

You should consult with a well qualified and knowledgeable family lawyer in your area if you are facing divorce proceedings. An experienced family lawyer can help you understand how your state defines and divides marital property. Additionally, they will represent you in any necessary court proceedings.