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.

Illinois follows the principle of equitable distribution when dividing marital property during a divorce. This means that the court will attempt to divide the couple's assets in a manner that is fair, but not necessarily equal. The court takes into account various factors, including each spouse's education, employability, earning capacities, and separate property assets that were acquired before the marriage. Additionally, the court may consider the conduct of the spouses, such as infidelity or abusive behavior, in determining the division of assets. Unlike community property states, where there is a presumption of equal division of marital property, Illinois courts have the discretion to divide assets in a way that they deem equitable based on the circumstances of the case. It's important to note that 'equitable' does not always mean 'equal,' and the division of property in Illinois can result in a variety of distributions based on the judge's assessment of what is fair.