What Is Marital Property?

Marital Property Explained in Less Than 5 Minutes

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Marital property is property and assets acquired by at least one spouse during the course of a marriage, although exceptions typically apply for gifts and inheritances.

Key Takeaways

  • Marital property refers to property acquired by one or both spouses during the course of a marriage.
  • Common-law states and community-property states may apply different rules for distributing marital property in a divorce.
  • Separate property can be transmuted into community property, granting equal ownership to both spouses.
  • If you live in a community-property state, you and your spouse share equally in any distribution of marital assets and debts.

How Marital Property Works

Marital property is simply property a couple acquires together after they're married. Meanwhile, any assets or property that belonged to either spouse before the marriage is considered to be separate or individual property. Inheritances or third-party gifts received after the marriage are also usually considered to be separate.

In a divorce proceeding, the court will look at both marital property and separate property to decide who gets to keep what once the marriage is dissolved. States can define marital property and separate property differently.


Marital property laws exist in part to ensure that spouses are treated fairly during a divorce proceeding.

If you and your spouse can't agree on how to divide marital property, the courts can step in and make the decision for you. Whether you live in a common-law state or a community-property state can determine whether the court uses equitable distribution or equal distribution guidelines to divvy up marital property.

Community Property

In community-property states, equal distribution gives both spouses a 50/50 share in marital property. That means that during the divorce proceedings, the negotiations are usually centered around whether or not property is community property or separate property. All separate property goes back to the spouse whose property it is, while the marital property is split equally. There are nine community-property states in the United States.


In Alaska, Tennessee, and South Dakota, married couples can decide whether they want to opt-in to community-property rules or not.

The states that follow community-property guidelines for dividing marital property are:

  • Arizona
  • California
  • Idaho
  • Louisiana
  • Nevada
  • New Mexico
  • Texas
  • Washington
  • Wisconsin

Equitable Distribution of Marital Property

Most states use equitable distribution to divide up marital property. That means the court attempts to divide property fairly between spouses based on specific factors or criteria, but marital property might not be split equally.

The court would consider a variety of factors, including each spouse's income, health condition, and any contributions made during the marriage. For example, if one spouse handled all of the childcare, or worked so the other spouse could go to school, that could affect the way marital property was divided.


If you have a prenuptial agreement in place, the terms of the agreement may override any distribution of marital property under common-law or community-property rules.

Essentially, the court decides what is a fair way to divide the property. Let's say you and your spouse are divorcing and you're trying to decide who gets to keep the home you purchased together, and both your names are on the loan and the deed.

If your spouse worked but you didn't because you stayed home with your three children, the court might decide to allow you to retain the property so you can continue caring for your kids.

Example of Marital Property

In New York, for example, marital property includes:

  • Real property you and your spouse bought during the marriage, except for any contributions of your separate property you may have made to such property, such as paying part or all of the down payment with separate property funds
  • Personal property such as cars, boats, airplanes, furniture, and artwork you and your spouse bought during the marriage
  • Cash, securities, bank accounts, retirement accounts, and pensions acquired during the marriage
  • Advanced educational degrees and permits to engage in specialized businesses acquired during the marriage
  • Gifts to each other


Debts the other spouse acquired before the marriage would not be considered marital debt. However, debt taken out during the marriage, such as a mortgage, can count as marital debt.

Separate Property

Separate property includes real or personal property obtained prior to the marriage, inheritances, and third-party gifts.

It also includes compensation for personal injury not related to loss of wages, and property exchange for separate property. Separate property also includes property acknowledged by both spouses as being separate in a written agreement.

Commingling or Transmuting Property

If you live in a state that observes community-property laws, it's important to understand how separate property can become community property. This can happen when separate property is commingled with community property. It can also work in reverse if community property is retitled to become the individual property of just one spouse.

Say, for example, that you own a home prior to marriage. Eventually, you decide you want to refinance the mortgage and you ask your spouse to sign off on the loan with you because they have a higher credit score. They agree, on the condition you also add their name to the deed to the home. You do so, which makes what was once a separate property a community property since it's in both your names.

Marital Debt

Say your spouse has student loan debt for loans they took out before you were married. They ask you to be a co-signer on a refinance loan. You agree, with the condition that they'll repay the debt themselves.

Under community-property rules, however, you're both legally and financially responsible for the debt. So it's possible that you could be ordered to pay half the debt if you divorce as it's technically marital debt now.


Talking with a professional divorce attorney or financial advisor can help you to better understand marital property division laws in your state.

Frequently Asked Questions (FAQs)

What are considered assets in a marriage?

Assets include but aren't limited to your car, your house, your bank account, and any investments. Your retirement accounts, business interests, insurance, and even intellectual property can be considered assets. Essentially, almost anything you own that can potentially make you money or is worth money is an asset. Whether or not it's marital property depends on whether it was a gift or inheritance, whether you acquired it before or during the marriage, and if you have an agreement with your spouse already about who owns the property.

How do you keep assets separate in a marriage?

If you want to ensure that some of your assets are kept as your separate property during your marriage, you'll most likely want to get a prenuptial or postnuptial agreement to be safe. However, you can also keep your assets separate if you avoid commingling or transmuting them. For example, if you come into a marriage with your own bank account or your own house, you'll want to make sure that you don't put your spouse's name on either your bank account or your house. Then it would become marital property instead of separate property.

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The Balance uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. Legal Information Institute. "Marital Property."

  2. Internal Revenue Service. "Publication 555, Community Property."

  3. New York City Bar. "Divorce & Property Rights."

  4. HG.org Legal Resources. "Can Personal Injury Awards Become Part of Marital Property?"

  5. Internal Revenue Service. "25.18.1 Basic Principles of Community Property Law."

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