Free tool · Family Law
Marital or Separate Property: Who Gets What in a Divorce?
In a divorce, property is first sorted into marital property (generally everything acquired by either spouse during the marriage, whoever holds title) and separate property (generally what a spouse owned before the marriage, and gifts and inheritances to one spouse alone). Separate property can become marital if it is mixed with marital funds, and growth in a separate asset is marital if it came from effort during the marriage, but separate if it came from the market. In community property states the marital pool is divided equally; in equitable distribution states the court divides it fairly, weighing factors. Enter your assets to see how they sort.
Tool · Marital Property Divider
| Asset or debt | Value | How acquired | Held by | Growth in value | Kind of growth | Mixed in | |
|---|---|---|---|---|---|---|---|
Marital pool (net of debts)
$612,000
Spouse A’s separate property
$150,000
Spouse B’s separate property
$140,000
An equal share of the pool
$306,000
If divided equally: Spouse A ends with $456,000 and Spouse B with $446,000, including separate property.
- House bought during the marriage: Acquired during the marriage by the work of either spouse: marital property, whoever holds title.
- Her pension earned during the marriage: Acquired during the marriage by the work of either spouse: marital property, whoever holds title.
- His business started before the marriage: Owned before the marriage: separate. But the increase of 120,000 came from active effort during the marriage (work, management or marital funds), so that part is marital.
- Inheritance from her father: A gift or inheritance to one spouse: separate, and its increase in value was passive (market forces), so that stays separate too.
- Credit card debt from the marriage: A debt incurred during the marriage for the family’s benefit is generally a marital debt, shared in the division.
- In an equitable distribution state the court divides the marital property fairly, which is not always equally. It weighs factors such as the length of the marriage, each spouse’s contribution (including as homemaker), earning power, age and health, the need to keep the family home for children and each spouse’s separate property. An equal split is a common starting point, not a rule, and the figures below show an equal split for illustration only.
- Separate property can become marital by commingling or transmutation. Pensions and retirement accounts are usually divided by court order, and only the part earned during the marriage is marital. Business goodwill, professional degrees and debts raise further questions that vary by state.
Sorts a couple’s assets and debts into marital and separate property (by when and how each was acquired, whether it was mixed into marital funds, and whether growth in a separate asset came from effort or from the market), and shows an equal split of the marital pool for illustration. In an equitable distribution state a court weighs factors and the split need not be equal. Simplified general rules; states differ, and valuation of pensions, businesses and debts raises many more questions. A teaching aid, not a prediction and not legal advice. Runs in your browser; nothing is stored or sent.
How to use it
- List each asset or debt, its value and how it was acquired.
- Say who holds it, whether it grew in value, and whether the growth was active or passive.
- Tick any asset that was mixed into marital funds.
- Choose the kind of state and read the pool, each spouse’s separate property and an equal split.
Common questions
Is an inheritance marital property?
Generally not: an inheritance or a gift to one spouse is that spouse’s separate property, unless it is mixed with marital funds or put in joint names, in which case it may become marital.
What is the difference between community property and equitable distribution?
Community property states generally divide marital property equally. Equitable distribution states divide it fairly, which is not always equally, considering factors such as the length of the marriage, each spouse’s contributions and earning power, and the needs of the children.
Does it matter whose name is on an asset?
Usually not for classification. What matters is when and how it was acquired. Title can be evidence of intent, but a house bought during the marriage with marital earnings is marital even if only one spouse is named.
Learn the law behind the tool
This tool is part of our Family Law course, with lectures, concept maps, flashcards, interactive exercises and a capstone case. Family Law: Property and Support.
More free law tools
General information, simplified, mainly on American law, not legal advice. States and countries differ, and real cases turn on facts that a tool cannot capture.