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 Alaska, which is unique among community property states, spouses have the option to opt into a community property system with a community property agreement or trust. If they do not opt into this system, the default is an equitable distribution system. During a divorce, marital property, which includes assets acquired during the marriage, is subject to division. In the absence of a community property agreement, the court will divide marital property equitably, though not necessarily equally, based on various factors such as the length of the marriage, the spouses' health, earning capacities, and other considerations. Separate property, which is acquired before marriage or received as a gift or inheritance, is generally not divided upon divorce. However, in equitable distribution, the court may consider each spouse's separate property when deciding on an equitable division of marital assets. It's important to note that while Alaska is listed among community property states, the community property system is not automatic and requires specific action by the spouses to be applicable.