Marital property is generally property that is acquired during marriage, is jointly owned by the spouses, and is subject to division upon divorce—whether the spouses reside in (1) an equitable distribution or common law property state or (2) in a community property state.
Marital property is distinct from separate property, which is generally property that a spouse acquired before marriage—or acquired by gift or inheritance during marriage—and is not subject to division upon divorce.
Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In these states, divorce courts generally start with the presumption that the marital property is owned equally by the spouses and will be divided equally upon divorce.
In other states—so-called equitable distribution or common law property states—the divorce court attempts to divide the spouses’ assets equitably (fairly) and may consider a spouse’s separate property in deciding to make an unequal division of the spouses’ marital property.
In practice, the difference between the division of assets in community property states and in equitable distribution states is sometimes not as great as it may seem, as the court in a community property state may have the discretion to divide the spouses’ community property on a 60-40, 70-30, or other unequal basis.
In Texas, which is a community property state, marital property is typically considered to be any property acquired by either spouse during the marriage, except for gifts or inheritances received by one spouse. This property is presumed to be owned equally by both spouses and is subject to equal division upon divorce. Separate property, on the other hand, includes assets acquired before the marriage or by gift or inheritance during the marriage, and it is not divided upon divorce. While the starting point for division of assets in Texas is a 50-50 split, courts may adjust the division based on factors such as the spouses' circumstances and contributions to the marriage. This means that, in practice, the division may not always be exactly equal, and the court has the discretion to order an unequal division if it deems it just and right.
