What is Marital Property in Divorce?


Going through a divorce can be an emotionally challenging experience, and one of the most crucial aspects that need to be addressed is the division of marital property. Different states follow different approaches to property division during a divorce. In some states, the principle of “equitable distribution” or “marital property” is applied, which ensures that marital property is divided fairly between the spouses. This article explores the concept of equitable distribution, the definition of marital property, factors considered in property division, the concept of separate property, and ways to navigate the rules governing marital property division.

What is Considered Marital Property?

Marital property refers to assets and possessions acquired during the course of the marriage. In states that follow the equitable distribution principle, the property is not necessarily divided equally between the spouses but rather in a manner that the court deems fair.

Examples of marital property include:

  • Real estate and personal property
  • Vehicles
  • Household items
  • Bank accounts and investments
  • Retirement accounts
  • Debts and loans

Factors Considered in Property Division

When dividing marital property, the court takes various factors into consideration to ensure a fair distribution. Some of these factors include:

  • The duration of the marriage
  • The standard of living established during the marriage
  • The value of household management, including childcare
  • The income level and future earning potential of each spouse
  • The age and health of the parties

The court acknowledges the contributions made by each spouse during the marriage. While the higher income earner may receive a larger share, the spouse who contributed in non-monetary ways, such as managing the household or supporting the other spouse’s work, can make equitable claims.

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What is Considered Separate Property?

Separate property is not subject to division during a divorce. It includes assets that are considered individually owned by one spouse and are not part of the marital estate.

Examples of separate property include:

  • Property acquired through gift or inheritance
  • Property acquired after a legal separation
  • Property obtained in exchange for separate property
  • Property specifically excluded by a valid agreement of the parties

How is the Value of Marital Property Determined?

The court typically determines the value of marital property at the time the official divorce judgment or decree is issued, not at the time of separation. However, couples can mutually agree to use a different valuation date.

Navigating Marital Property Division

Couples have the option to come to their own agreement on how to divide their assets, avoiding the court’s involvement in the process. This agreement should be fair and reasonable to both parties and can be submitted to the court for approval.

Additionally, prenuptial and marital agreements can establish limits and exceptions to the general rules of property division. However, for these agreements to be valid, they usually need to be prepared by an attorney or a mediator.


Understanding the concept of equitable distribution or marital property is essential for individuals going through a divorce. Marital property includes assets acquired during the marriage, and its division is based on several factors, aiming for a fair distribution. On the other hand, separate property remains with the individual spouse. To navigate the property division process, couples can reach a mutual agreement and seek legal advice if needed.

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1. What is the difference between equitable distribution and community property states? In equitable distribution states, marital property is divided fairly but not necessarily equally. In community property states, marital property is divided equally between the spouses.

2. Can I keep all my separate property during a divorce? Yes, separate property is not subject to division during a divorce and remains with the individual spouse.

3. Can I create a prenuptial agreement without an attorney? While it is possible to create a prenuptial agreement without an attorney, it is highly recommended to seek legal advice to ensure its validity and effectiveness.

4. What happens if we can’t agree on how to divide our property? If couples cannot reach an agreement on property division, the court will make the decision for them based on the applicable state laws.

5. Can a spouse claim ownership of a property solely under their name during divorce? Yes, if a spouse’s name appears on a property title, they are considered the owner. However, the other spouse may have a legal right to claim a fair share of the property during divorce proceedings.

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