Marital property refers to the property and assets that either spouse acquires during the course of the marriage. This does not include separate property, which consists of assets that either spouse owned before the marriage, inheritances received by one spouse individually, or gifts received by one spouse from a third party during the marriage. The definition of what constitutes marital and separate property can vary from state to state, but the general principles are fairly consistent.
In the context of U.S. family law, states are categorized as either community property states or equitable distribution (or common law) states.
Community property states are a minority of states where spouses are considered equal owners of all marital or community property. This means that assets are split 50-50 in the event of a divorce. Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
In contrast, equitable distribution states, which are the majority, distribute property in a way that is equitable or fair but not necessarily equal. Courts in these states look at a variety of factors to determine a fair distribution, including:
- Each spouse’s income;
- Earning potential;
- The length of the marriage;
- The standard of living during the marriage;
- The age and health of each spouse; and
- The contribution of each spouse to the marital property.
When filing for a divorce or legal separation in a marital property state, each type of property must be categorized as either marital or separate. The marital property is then divided according to the laws of the specific state, either equally (in community property states) or equitably (in equitable distribution states). Separate property, on the other hand, remains in the possession of the original owner.
These divisions can be influenced by prenuptial or postnuptial agreements, which are contracts that allow spouses to decide for themselves how their property would be divided in the event of a divorce. It’s also possible for separate property to be transformed into marital property through commingling, where separate property is mixed with marital property to the extent that it cannot be distinguished.
These issues can be complex, so it’s always a good idea to consult with a family law attorney who understands the laws of your specific state if you’re facing a divorce or legal separation.
How Many States Are Marital Property States?
“Marital property states” refer to both community property states and equitable distribution states, as both types consider marital property in a divorce.
Community Property States
There are 9 community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
In these states, the law assumes that all property (and debts) acquired during the marriage belong equally to both spouses. In a divorce, these will generally be split 50-50 unless there’s a compelling reason to deviate from this.
Equitable Distribution States
The remaining 41 states, plus the District of Columbia, are considered equitable distribution or common law states. In these states, the court divides marital property in a way that is fair but not necessarily equal. The judge will consider various factors, such as:
- The length of the marriage;
- Each spouse’s earning capacity and contributions to the marriage;
- The age and health of the spouses;
- The standard of living during the marriage, among other things.
“Marital property” in both types of states typically only refers to property that was acquired during the marriage. Property that was owned by either spouse prior to the marriage, as well as inheritances and gifts received by one spouse individually during the marriage, are usually considered separate property. This property is not subject to division in a divorce unless they’ve been commingled with marital property in a way that they can’t be distinguished.
Is It Possible to Choose a Different Set of Marital Property Rules?
While state’s laws where you reside generally dictate how marital property is divided in the event of a divorce, spouses can decide how their property would be divided through a prenuptial or postnuptial agreement.
A prenuptial agreement, or “prenup,” is a contract entered into by a couple before they get married. This agreement typically specifies what each person’s spousal property rights will be if they divorce, including how their property will be divided.
For example, John and Sarah are planning to get married. John owns a successful business that he started before meeting Sarah, and Sarah has a substantial inheritance from her late parents. They decide to enter into a prenuptial agreement to protect their separate assets.
According to their prenuptial agreement, John’s business and all its assets, as well as Sarah’s inheritance, will remain their separate property even after marriage. In the event of a divorce, neither party will have any claim to the other’s separate property.
A postnuptial agreement is similar, but it’s a contract entered into after the couple is already married. Like a prenup, a postnup can specify how the couple’s property will be divided in a divorce.
Both types of agreements allow a couple to decide for themselves how their property would be divided rather than leaving it up to the state’s laws. However, there are some limits to what these agreements can do. For example, they generally cannot dictate anything about child custody or child support. Those are matters that are determined based on the best interests of the child, not the agreement of the parents.
In addition, prenuptial and postnuptial agreements must meet certain requirements in order to be valid. These requirements can vary by state but typically include things like full disclosure of assets, fair and reasonable terms, and that both parties had the opportunity to consult with an attorney.
So, while you can’t simply pick and choose a different set of marital property laws to follow, you can use a prenup or postnup to tailor the rules to your specific situation. As always, it’s recommended that you consult with an attorney if you’re considering a prenuptial or postnuptial agreement.
Do I Need a Lawyer to Help With Marital Property State Laws?
Understanding and navigating marital property laws can be a complex process. While it’s not mandatory to have a lawyer, having an experienced family law attorney by your side can ensure that your rights are fully protected and that you get a fair deal in terms of property division.
An attorney can help you understand the specific marital property laws of your state and help you distinguish between marital and separate property. Your attorney will also guide you through the process of dividing assets and debts and represent your best interests in negotiations and court proceedings.
If you’re considering a prenuptial or postnuptial agreement, it’s especially important to have legal advice to ensure the agreement is fair, equitable and meets all legal requirements. Similarly, if you’re in the midst of a divorce or legal separation, an attorney can be an invaluable resource.
LegalMatch is an online service that can help you find a qualified family law attorney in your area. By presenting your case on LegalMatch, you can get matched with lawyers who are ready and willing to help, review their credentials and experience, and choose the one who best fits your needs.
Navigating marital property laws can be complex and stressful, but you don’t have to do it alone. Use LegalMatch to find the right lawyer for your situation today.