Equitable distribution is the legal principle most states use to divide marital property in a divorce. In so-called equitable distribution or common law property states the court attempts to divide the spouses’ assets equitably (fairly) and may consider the value of a spouse’s separate property in making an unequal division of the spouses marital property.

In deciding what is an equitable distribution of the spouses’ property, the court may consider factors such as the relative education, employability, earning capacities, and separate property assets (acquired before marriage) of the spouses, and whether one spouse’s infidelity or abusive behavior, for example, was a greater factor in the breakup of the marriage.

In contrast, if the spouses live in a community property state the court generally begins with the presumption that the spouses’ marital or community property will be divided equally.

But 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—and to order one of the spouses to pay all or most of the community debts—based on factors such as the relative education, employability, earning capacities, and separate property assets (acquired before marriage) of the spouses, and whether one spouse’s infidelity or abusive behavior was a greater factor in the breakup of the marriage.

Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Hawaii is not a community property state; it operates under the principle of equitable distribution for dividing marital property during a divorce. This means that when a marriage ends, the court will divide the spouses' assets in a manner that is fair, but not necessarily equal. The court takes into account various factors to determine what is equitable, including each spouse's education, employability, earning capacities, and separate property assets that were acquired before the marriage. Additionally, the court may consider the conduct of the spouses, such as infidelity or abusive behavior, in deciding how to distribute property. While equitable distribution focuses on fairness rather than equality, the actual division of assets can sometimes resemble the outcomes in community property states, as the court has the discretion to make unequal distributions based on the circumstances of the case.