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 Oregon, which is an equitable distribution state, the court divides marital property in a manner that is fair and equitable, but not necessarily equal, 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, includes assets acquired during the marriage and is subject to division. The court considers various factors to determine what is equitable, which may include the length of the marriage, the contribution of each spouse to the marital estate, and each spouse's economic circumstances. Unlike community property states, where there is a presumption of a 50-50 split of marital property, Oregon courts have the discretion to decide on an unequal division based on what is deemed fair for both parties.