In order to determine which spouse should receive which property, it is important to properly identify the property as either marital property, community property or separate property. Several states use a community property system in which all assets acquired during the marriage and income are considered the joint and equal property of both spouses.
In contrast, separate property is that which one spouse owns alone. This includes property that he or she owned before the marriage, a business that the spouse owned before the marriage, any pension benefits that vested before the marriage, property that is separate due to a written agreement between the spouses and property acquired as a gift or inheritance during the marriage. Separate property is generally not subject to division. In community property states, each spouse is usually entitled to a 50 percent stake in the community property and debts.
In the remaining states, equitable distribution is used to determine how to divide a couple’s estate. In these states, a spouse’s share of marital property may not be equal to the share of his or her spouse. The court attempts to make a fair distribution to both spouses based on a number of factors, such as the duration of the marriage, the earning history of each spouse, the age and health of each spouse and the separate property available to each spouse.