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 North Carolina, marital property is subject to the rules of equitable distribution rather than community property laws, as North Carolina is not one of the community property states. Marital property includes assets and debts acquired by either spouse during the marriage, except for inheritances or gifts specifically given to one spouse. Upon divorce, the court will attempt to divide this property equitably between the spouses, which does not necessarily mean equally, but rather in a manner that the court deems fair, considering various factors such as the duration of the marriage, the age and health of the parties, and their income and assets. Separate property, which is acquired before the marriage or by gift or inheritance during the marriage, is typically not subject to division. The goal of equitable distribution in North Carolina is to reach a fair outcome based on the circumstances of each case, which may result in an unequal division of marital property.