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 New Mexico, which is a community property state, marital property is typically considered to be any property that is acquired by either spouse during the marriage. This does not include separate property, which is property one spouse acquired before marriage or received as a gift or inheritance during the marriage. Upon divorce in New Mexico, there is a presumption that marital property will be divided equally between the spouses. However, the court may have discretion to divide the property unequally if circumstances warrant an unequal distribution. This is in contrast to equitable distribution states, where courts divide marital property based on what is considered fair, which may not always result in an equal split. The court in an equitable distribution state may also consider each spouse's separate property when deciding how to divide assets. Despite these differences, the actual division of assets in community property states like New Mexico can sometimes be similar to the division in equitable distribution states, depending on the specific circumstances of the case and the court's discretion.