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 Delaware, which is an equitable distribution state, marital property is defined as property acquired by either spouse during the course of the marriage and is subject to division upon divorce. Marital property does not include separate property, which is property one spouse owned before marriage or received as a gift or inheritance during the marriage. During a divorce in Delaware, the court will divide marital property in a manner that is deemed fair and equitable, which does not necessarily mean equally. Factors such as the length of the marriage, the economic circumstances of each spouse, and contributions to marital property, among others, may influence the division. Unlike community property states, where there is a presumption of a 50-50 split of marital assets, Delaware courts have the discretion to determine what is equitable, which could result in an unequal distribution based on the specific circumstances of the case.