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Marital Property Division

How a court splits what a couple owns - and "equitable" means fair in that state's judgment, which is not the same as half.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

Looking for a lawyer rather than a definition? Skip to the state-by-state list of law firms for this.

What it means

Dividing property in a divorce happens in two steps, and most disputes are really about the first one. The court must decide what is divisible, and then how to divide it.

On the first step, states generally distinguish marital or community property - acquired during the marriage - from separate property, which typically includes what each spouse owned before marrying and what either received during the marriage by gift or inheritance. The line is easy to state and hard to apply, because separate property can lose its character. Money kept in a joint account, a pre-marital house that both spouses paid the mortgage on, or a business that grew through the work of both, may become partly or wholly divisible depending on the state's rules and on what can be traced.

On the second step the states split into two families. A minority are community property states, where marital property is generally owned equally and division starts from an equal split. The majority are equitable distribution states, where the court divides marital property in the proportion it considers fair after weighing statutory factors - the length of the marriage, each spouse's contributions including as a homemaker, their earning capacity and health, and in some states marital misconduct. Equitable means fair, not equal, and a court may reach any proportion the factors support.

Debts are divided too, and a court order allocating a debt binds the spouses, not the lender: a creditor whose contract is with both may still pursue either. Retirement accounts are their own subject. Dividing an employer plan generally requires a separate court order that the plan itself will accept - a qualified domestic relations order - and a decree that awards a share without one may not move any money.

Where this comes from

Property division is state law and there is no national rule. Nine states operate community property systems by statute - Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin - and Alaska, Florida, South Dakota and Tennessee permit community property by election through a trust or agreement; the remaining states use equitable distribution, with the factors a court must weigh listed in each state's statute. Division of a private-sector retirement plan is governed by the Employee Retirement Income Security Act, which permits a plan to honor a qualified domestic relations order under 29 U.S.C. § 1056(d)(3) and 26 U.S.C. § 414(p); federal civil service, military and railroad retirement systems each have their own separate rules. Whether misconduct may be considered, and how separate property that has been commingled is treated, are set by state statute and case law.

When people hire a lawyer for this

The tracing questions are the ones worth paying for, because they decide the size of the pot before anyone argues about the split: property owned before the marriage, an inheritance, a gift, a house one spouse brought in, or a business started earlier are all commonly assumed to be safe and commonly are not. Advice is also worth having where a pension, 401(k), IRA or military or federal retirement is involved, since the order that divides it is a separate document with its own requirements and plans reject defective ones; where a spouse is self-employed or paid substantially in equity, bonuses or distributions; where one spouse handled the finances and the other does not know what exists; and where the marital home is to be kept, because keeping it usually means refinancing and qualifying alone. Assembling a full list of accounts, debts, policies and statements early is the single most useful thing a client can do, and it is cheaper done once than reconstructed later.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

Find a lawyer for this in your state

Choose your state to see Divorce & Separation law firms in the city where we list the most; your city may be under “other cities”, A to Z.

Alabama (Birmingham)
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Alaska (Anchorage)
Arizona (Glendale)
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California (San Diego)
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- and 7 more with fewer listed firms
Colorado (Colorado Springs)
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District of Columbia (Washington)
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Maine (Portland)
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Michigan (Detroit)
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Mississippi (Jackson)
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Montana (Billings)
Nebraska (Lincoln)
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Nevada (Henderson)
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New Hampshire (Manchester)
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Rhode Island (Providence)
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Virginia (Virginia Beach)
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Washington (Spokane)
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West Virginia (Charleston)
Wisconsin (Madison)
+1 other city
- Milwaukee
Wyoming (Cheyenne)

Related terms

Other entries in the same area of law, each written from the same primary sources.

AdoptionThe court order that makes a child legally the son or daughter of someone other than the birth parents - the kinds of adoption, whose consent is required, how the birth parents' rights end, the home study and the hearing, and what the order changes about inheritance, records and the child's name.
Annulment (Void and Voidable Marriage)A court judgment declaring that a marriage was never valid, as distinct from a divorce that ends a valid one - the difference between a void and a voidable marriage, the grounds each state recognizes, who may bring the case, and what an annulment does to property, support and children.
Child SupportMoney one parent pays the other toward a child's living costs, set in most cases by a state formula rather than by negotiation.
Common-Law MarriageA marriage formed without a license or ceremony by living together as spouses and holding yourselves out as married - which states still allow it, what has to be proved, why every state recognizes one validly formed elsewhere, and what it means for property, support and inheritance when the relationship ends.
Dividing Retirement Accounts in Divorce (QDRO)How pensions, 401(k) plans and IRAs are divided at divorce without tax or penalty - what a qualified domestic relations order is and why a divorce decree alone is not enough, the difference between a defined-benefit and a defined-contribution split, the plans that need a different order, and the mistakes that cost a former spouse the share the decree awarded.
Establishing PaternityThe legal step that makes a man a child's father in law - and signing the hospital form is one of two routes, not a formality.
Grandparent and Third-Party VisitationWhen a court can order that a child spend time with a grandparent, step-parent or other non-parent over a parent's objection - the constitutional limit set by the Supreme Court, the circumstances in which state statutes allow a petition, the special weight a fit parent's decision receives, and what a petitioner must prove.
Grounds for DivorceThe legal basis a divorce is granted on - and in every state today at least one basis requires proving no wrongdoing by anyone.
Guardian ad Litem and Custody EvaluatorThe two neutrals a court most often appoints in a contested custody case - what a guardian ad litem does and does not do, how it differs from a child's attorney and from a custody evaluator, who pays, what they may see, and how their reports are used at trial.
Guardianship of a MinorA court order giving an adult who is not the parent legal authority over a child's care, or over the child's property, without ending the parents' rights - how it differs from custody and adoption, who can be appointed, what the parents keep, and how it ends.
Legal and Physical CustodyTwo different things the word "custody" covers: who makes major decisions for a child, and where the child lives.
Legal SeparationA court status in which spouses live apart with binding orders on support, property and children, while remaining married.
Modifying a Custody or Support OrderChanging an existing family court order - which usually requires proving something has changed, and never happens by the parents' agreement alone.
Parenting Plan and VisitationThe written schedule and decision-making rules for a child after separation - and the document courts increasingly require rather than invite.
Prenuptial AgreementA contract made before marriage about property and support - enforceable in every state, and set aside more often than most people expect.
Protective Order (Restraining Order)A court order telling one person to stop contacting or coming near another - enforceable by police, and valid across state lines.
Relocating With a ChildMoving a child away from the other parent - the family law dispute most likely to require the court's permission before the move, not after.
Spousal Support (Alimony)Payments from one former spouse to the other - discretionary in most states, and taxed differently for instruments made after 2018.
Termination of Parental RightsThe court order that permanently ends the legal relationship between a parent and child - the grounds a state must prove, the heightened standard of proof and right to counsel, the difference between voluntary relinquishment and an involuntary petition, and what the order does and does not end.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programs provide free help with many of these problems: civil legal aid programs by state.

Related free reference tools: statute of limitations for a personal-injury claim, by state, quoted from each state's official text - part of LawyerLand's legal reference tools.