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 Ohio, which is an equitable distribution state, marital property is defined as most property acquired by either spouse during the marriage and is subject to division upon divorce. This includes but is not limited to income, real estate, and personal property that was acquired from the date of marriage until the date of separation. Separate property, which is not subject to division, includes assets acquired before the marriage, inheritances, gifts received by one spouse, and any items excluded by a valid prenuptial agreement. During a divorce, Ohio courts strive to divide marital property equitably, which means fairly but not necessarily equally. Factors such as the duration of the marriage, the assets and liabilities of the spouses, the desirability of awarding the family home to the spouse with custody of children, and the liquidity of the property are considered. Unlike community property states, where there is a presumption of a 50-50 split of marital assets, Ohio courts have the discretion to determine what is fair, which may result in an unequal distribution based on the circumstances of the case.