Separate property 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. In contrast, 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.

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 Arizona, which is a community property state, the law presumes that all property acquired by either spouse during the marriage is community property and should be divided equally upon divorce. Separate property, on the other hand, includes assets acquired before the marriage or received as a gift or inheritance during the marriage, and it is not subject to division in a divorce. However, it is important to note that the equal division of community property is a starting point, and the court may decide to divide the property unequally if it finds reasons to do so. Factors such as the duration of the marriage, the contributions of each spouse to the marital property, and the economic circumstances of each spouse can influence the court's decision. Despite the presumption of equal division in community property states like Arizona, the actual division of assets may not be strictly 50-50, as the court has the discretion to order an unequal division based on the specifics of the case.