Separate property 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. In contrast, 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.

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, the law distinguishes between separate property and marital property during a divorce. Separate property includes assets acquired before the marriage or received as a gift or inheritance during the marriage, and it typically remains with the original owner and is not divided upon divorce. Marital property, on the other hand, consists of assets acquired during the marriage and is subject to division upon divorce. Virginia courts strive to divide marital property equitably, which means fairly but not necessarily equally. Factors such as the duration of the marriage, contributions to the family, and economic circumstances may influence the division of assets. Unlike community property states, where there is a presumption of a 50-50 split of marital property, Virginia courts have the discretion to determine what is fair, which could result in an unequal distribution based on the specific circumstances of the case.