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 Alabama, which is an equitable distribution state, marital property is defined as property acquired during the marriage and is jointly owned by the spouses. This property is subject to division upon divorce based on what is considered fair and equitable, rather than an automatic 50/50 split. Separate property, which includes assets acquired before the marriage or received as a gift or inheritance during the marriage, is generally not subject to division in a divorce. Alabama courts will consider various factors to determine an equitable distribution of marital property, which may result in an unequal division, but the goal is to reach a fair outcome based on the circumstances of each case. Unlike community property states, where there is a presumption of equal ownership of marital property, Alabama does not start with a presumption of equal division. Instead, the court has the discretion to consider the contributions of each spouse to the marriage, the economic circumstances of the parties, and other relevant factors when dividing marital property.