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 West Virginia (WV), the concept of separate and marital property is recognized in the context of divorce. Separate property includes assets acquired before the marriage or received as a gift or inheritance during the marriage, and it is typically not subject to division during a divorce. Marital property, on the other hand, encompasses assets acquired during the marriage and is subject to division upon divorce. West Virginia is not a community property state; it follows the principles of equitable distribution. This means that during a divorce, the court will aim to divide marital property in a manner that is fair and equitable, but not necessarily equal. Factors such as the length of the marriage, contributions to the marriage, and each spouse's economic circumstances may influence the division of assets. Although separate property is generally not divided, it can impact the equitable distribution of marital property. It's important to note that equitable distribution can result in a variety of division ratios, and the outcome can be similar to the division of assets in community property states, depending on the specific circumstances of the case.