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.

Hawaii is not a community property state; it operates under the equitable distribution model for dividing marital property during a divorce. This means that when a couple divorces in Hawaii, the court will divide their marital property in a manner that it deems fair, but not necessarily equally. Marital property includes assets and debts acquired during the marriage, regardless of whose name is on the title. Separate property, which includes assets acquired before the marriage or by gift or inheritance during the marriage, is typically not subject to division in a divorce. However, the distinction between marital and separate property can be complex, and factors such as commingling of assets can affect how property is categorized. The court may consider a variety of factors, including each spouse's economic circumstances, contributions to the marriage, and the duration of the marriage, to arrive at an equitable division of property.