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.

South Dakota is an equitable distribution state, not a community property state. This means that during a divorce, the court will divide marital property in a manner that is equitable, or fair, but not necessarily equal. Marital property in South Dakota includes all property acquired by either spouse during the marriage, except for gifts and inheritances received by one spouse. The court will consider various factors to determine what is fair, including the length of the marriage, the value of the property, and the contributions of each spouse to the marriage, among others. Separate property, which is property acquired before the marriage or by gift or inheritance during the marriage, is generally not subject to division in a divorce. However, the increase in value of separate property during the marriage may be considered marital property. The court has the discretion to consider the circumstances of each case to achieve an equitable distribution of assets.