Divorce Basics · Property Division
Community Property vs. Equitable Distribution
How your state divides marital property is one of the biggest factors in a divorce. There are two systems in the US — and which one applies to you can dramatically affect your outcome.
Community Property
All assets and debts acquired during the marriage are owned equally by both spouses. At divorce, everything is split 50/50.
9 States
Equitable Distribution
Marital property is divided fairly — but not necessarily equally. A judge considers many factors to determine what is equitable in your specific situation.
41 States
Community Property States
The following 9 states use community property law. Alaska allows couples to opt in to community property rules by written agreement.
All other states use equitable distribution. If you live in an equitable distribution state, the split is based on fairness — not a guaranteed 50/50.
Key Differences at a Glance
| Aspect | Community Property | Equitable Distribution |
|---|---|---|
| Default split | 50/50 — each spouse owns half of all marital property | Varies — judge decides what is "fair" based on circumstances |
| Number of states | 9 states (plus Alaska by opt-in) | 41 states |
| Separate property | Property owned before marriage or received as gift/inheritance stays separate | Same general rule, but some states may consider separate property in the division |
| Debts | Debts incurred during marriage are generally joint | Debts allocated based on who incurred them and other factors |
| Prenuptial agreements | Can override default community property rules | Can override default division rules |
Factors in Equitable Distribution States
Judges in equitable distribution states weigh a variety of factors. Each state has its own list, but common factors include:
- ✓Length of the marriage
- ✓Each spouse's income and earning capacity
- ✓Age and health of each spouse
- ✓Contributions to the marriage (financial and non-financial)
- ✓Who has primary custody of children
- ✓Standard of living established during marriage
- ✓Tax consequences of the proposed division
- ✓Whether one spouse wasted marital assets
What Is Marital Property?
In both systems, only marital property is divided. Separate property — assets owned before marriage or received as a gift or inheritance — typically stays with the original owner.
Usually Marital Property
- • Income earned during the marriage
- • Home purchased during marriage
- • Retirement accounts accrued during marriage
- • Debts incurred during marriage
- • Business interests built during marriage
Usually Separate Property
- • Assets owned before marriage
- • Gifts received by one spouse
- • Inheritances
- • Personal injury compensation
- • Property covered by a prenuptial agreement
Warning: Separate property can become "commingled" — and therefore marital property — if it is mixed with marital funds or if marital funds are used to improve it. Keeping clear records is important.
Find Your State Guide
See How Your State Divides Property
Each state guide covers property division rules, filing fees, and step-by-step instructions.