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 Virginia, which is an equitable distribution state, marital property is defined as property acquired by either spouse during the course of the marriage that is not considered separate property. Separate property includes assets acquired before the marriage or received as a gift or inheritance during the marriage. Upon divorce, Virginia courts aim to divide marital property equitably, which means fairly but not necessarily equally. Factors such as the contributions of each spouse to the marriage, the duration of the marriage, and the reasons for the divorce may influence the division of property. Unlike community property states, where there is a presumption of a 50-50 split of marital assets, Virginia courts have the discretion to determine what is equitable, which could result in an unequal distribution based on the circumstances of the case.