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 Louisiana, which is a community property state, the law presumes that all property acquired by spouses during the marriage is community property and thus owned equally by both spouses. Upon divorce, this property is typically divided equally between the spouses. Separate property, on the other hand, includes assets acquired before the marriage or received as a gift or inheritance during the marriage. Separate property is not subject to division upon divorce. While the starting point for division is an equal split of marital property, courts in Louisiana have some discretion to divide community property in an unequal manner if there are compelling reasons to do so. However, this is less common and the presumption of equal division is strong. It's important to note that the characterization of property as either separate or community can be complex and may require legal analysis, particularly when separate property has been commingled with community property during the marriage.