Marital property is defined under state law.  The principles of which spouse owns which property are primarily determined by whether the spouses live in a common law property or a community property state.

Common Law Property State

The vast majority of states follow common law property principles.  These states presume that property earned or acquired during the marriage is marital property.  There are several exceptions.  For example, if the parties enter into a valid prenuptial or postnuptial agreement, this default rule does not apply.  Additionally, property owned before the marriage, received as a gift or inheritance, personal injury awards, property acquired by one spouse by using only separate property with the intent to keep it separate and property acquired during the marriage by one spouse that is deeded in only one name and not used for the benefit of the marriage are usually considered separate property.   Upon divorce, the court can consider a number of factors to determine how to equitably, but not necessarily evenly, divide the marital property.

Community Property States

The remainder of states uses the community property system.  This system is based on the idea that all assets acquired or earned during the marriage are community property to which each spouse owns 50/50.  Marital property in these states includes income, property bought with the earnings of the marriage and debts incurred during the marriage.  Property acquired prior to the marriage is considered separate property.  Gifts or inheritances to one spouse are usually considered separate property.

Personal injury awards provided to a spouse in a community property state are usually considered community property, but they are considered separate property during the divorce.  Courts usually divide the property 50/50 in the event of divorce.  There are exceptions to this general rule, such as if one spouse misappropriated community property.