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.

Alaska is unique in that it is an opt-in community property state, which means that couples can choose to make their property community property through a community property agreement or a community property trust. If they do not opt-in, then Alaska follows the equitable distribution model for dividing marital property in a divorce. Under equitable distribution, the court divides the spouses' assets in a manner that is fair but not necessarily equal, taking into account various factors such as each spouse's education, employability, earning capacities, and separate property assets. The court may also consider the circumstances of the marriage, including infidelity or abusive behavior, when determining how to distribute property. If a couple has opted into community property, the court will begin with the presumption that property will be divided equally, but it still has the discretion to divide property unequally based on similar factors considered in equitable distribution states.