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 Montana, which is not a community property state, the division of property during a divorce follows the principles of equitable distribution. This means that marital property, which includes assets and debts acquired during the marriage, is divided in a manner that the court deems fair, but not necessarily equal. Separate property, such as assets acquired before the marriage or through inheritance or gift during the marriage, is typically not subject to division. The court considers various factors to determine what is equitable, including the duration of the marriage, the economic circumstances of each spouse, and contributions to the marital estate, among others. Unlike community property states where there is a presumption of a 50-50 split of marital property, Montana courts have the discretion to divide property in proportions they believe are just, which could result in an unequal distribution based on the circumstances of the case.