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.

In New Mexico, which is a community property state, the law starts with the presumption that all marital property should be divided equally between the spouses upon divorce. Marital property includes most assets and debts a couple acquires during their marriage. However, the court has the discretion to depart from an equal division if it finds that such a division would be inequitable. When making a division of property, New Mexico courts may consider various factors, including but not limited to the spouses' education, employability, earning capacities, and separate property assets that were acquired before the marriage. Additionally, the court may take into account whether one spouse's infidelity or abusive behavior contributed significantly to the breakdown of the marriage. Despite the initial presumption of equal division, the actual division of assets in New Mexico can be similar to that in equitable distribution states, as the court has the authority to divide the community property unequally based on the circumstances of the case.