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 West Virginia, marital property is subject to division upon divorce according to the principles of equitable distribution, as West Virginia is not a community property state. This means that during a divorce, the court will divide the couple's assets in a manner that it deems fair, but not necessarily equal. The court will consider various factors, such as the length of the marriage, the income and earning potential of each spouse, contributions to the marriage (including homemaking and child care), and the value of each spouse's separate property. Separate property, which includes assets acquired before the marriage or received as a gift or inheritance during the marriage, is typically not subject to division. However, the court may take into account the existence of separate property when determining an equitable division of marital assets. It's important to note that equitable does not always mean a 50-50 split; the division could be 60-40 or some other ratio based on the court's assessment of what is fair under the circumstances of the case.