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 Mississippi, which is not a community property state, the law follows the principles of equitable distribution when it comes to dividing property upon divorce. Separate property, which includes assets acquired before marriage or received as a gift or inheritance during the marriage, is typically not subject to division. Marital property, on the other hand, is any property acquired during the marriage and is subject to division upon divorce. The court aims to divide marital property equitably, which means fairly but not necessarily equally. Factors such as each spouse's economic circumstances, contributions to the marriage, and the value of each spouse's separate property can influence the division. Unlike community property states where there is a presumption of a 50-50 split of marital property, Mississippi courts have the discretion to determine what is fair in each individual case, which could result in an unequal distribution of assets.