Community Property States

• There are nine states in the U.S. that subscribe to the doctrine of community property. Spouses seeking divorce in one of these states are considered to each own an undivided one-half interest in all property acquired during the marriage. Property is held to belong to the marriage as opposed to one spouse or the other. During a divorce, 50% of all real estate, personal property, assets, debts or lottery winnings must be divided between the divorcing spouses.
  
  

Equitable Distribution States

• The other 41 states subscribe to principles of equitable distribution. As opposed to the fifty-fifty division of property employed by community property states, equitable distribution considers the financial situations of each spouse before, during and after the marriage. The court will determine a scheme for distribution of property that will be fair to each spouse. Factors considered include earning potential, separate premarital property of each spouse, contribution to marital property, duration of the marriage, age or health of each spouse, which spouse served as the primary caregiver and instances of extramarital infidelity.
  
  

Property Not Included

• The majority of states have decided that inheritances and gifts acquired during the marriage do not count as marital property for purposes of equitable distribution or community marital property. In addition, the courts in either type of jurisdiction will not include property acquired by either spouse before the marriage took place or after separation. If property or wages were acquired in a non-community-property state during the marriage, neither will be considered community property or subject to the fifty-fifty division. Spouses in community property jurisdictions are also free to enter into a binding agreement not to consider certain property as community property.
  
  

Disposition of Property to Defeat Obligations

• It is unlawful in most states to dispose of marital property in order to defeat the obligation to subject it to equitable distribution or community property laws. Spouses have a duty of good faith with respect to marital property and the distribution of such during divorce proceedings.