Family Law & Divorce · Haute Lawyer Network
What Is Equitable Distribution in Divorce?
Last reviewed: June 2026
Equitable distribution is the legal standard used by the majority of states to divide marital property in divorce. It requires a fair — but not necessarily equal — division of marital assets and debts, based on a list of statutory factors.
Equitable distribution is used in 41 states. The remaining 9 are community property states — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin — where marital property is presumptively divided 50/50.
In equitable distribution states, "equitable" does not mean equal. A judge may award 60/40, 70/30, or any other split that the evidence supports as fair under the circumstances. Factors typically considered include the length of the marriage, each spouse's income and earning capacity, contributions to the marriage including homemaking and child-rearing, the standard of living during the marriage, the age and health of each spouse, tax consequences of the proposed distribution, and wasteful dissipation of marital assets.
Frequently Asked Questions
What is marital property versus separate property?
Marital property is generally everything acquired during the marriage — earnings, assets purchased with marital funds, and appreciation on joint assets. Separate property is typically what you owned before the marriage, inherited during the marriage, or received as a personal gift.
Can separate property become marital property?
Yes — through commingling. If you deposit an inheritance into a joint account or use separate funds to pay the mortgage on a jointly owned home, the separate property may lose its protected character.
Does fault affect equitable distribution?
In most states, marital misconduct — including adultery — has minimal or no effect on property division. A small number of states give courts discretion to consider fault.
What happens to debt in equitable distribution?
Marital debt — debt incurred during the marriage — is also subject to equitable distribution. The court can assign specific debts to each spouse. However, creditors are not bound by divorce orders — if your name is on a joint debt, creditors can still pursue you regardless of what the divorce decree says.
Can spouses negotiate their own equitable distribution rather than letting the court decide?
Yes. The vast majority of divorces settle — spouses negotiate and agree on property division, which is memorialized in a marital settlement agreement and approved by the court.
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