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 Utah, 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 equitably, but not necessarily equally, between the spouses upon divorce. The court considers a variety of factors to determine what is fair, including the length of the marriage, the financial situation of each spouse, and their respective contributions to the marriage. Separate property, which is property acquired before the marriage or received as a gift or inheritance, is generally not subject to division. However, the increase in value of separate property may be considered marital property if it resulted from the efforts of either spouse during the marriage. Utah courts have the discretion to decide on an unequal division of marital property if it is deemed equitable under the circumstances.