What Is Separate Property in an Equitable Distribution State?

When you get divorced, all property must be accounted for so you can decide which spouse gets to keep it. “Property,” in this sense, encompasses a wide range of things: real estate, vehicles, bank accounts, retirement savings, and even credit card debt, to name a few.

How should your property and marital debt division be handled when you get divorced? If you’re struggling to decide this with your soon-to-be ex-spouse, you’re not alone.

Where you live affects the division of property

All states in the U.S. are either “equitable distribution” states or “community property” states when it comes to asset division in divorce. The majority are equitable distribution states, and they include the following:

  • Alabama
  • Alaska
  • Arkansas
  • Colorado
  • Connecticut 
  • Delaware 
  • District of Columbia
  • Florida 
  • Georgia
  • Hawaii
  • Illinois
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota 
  • Mississippi 
  • Missouri 
  • Montana 
  • Nebraska 
  • New Hampshire 
  • New Jersey 
  • New York 
  • North Carolina 
  • North Dakota 
  • Ohio 
  • Oklahoma 
  • Oregon 
  • Pennsylvania 
  • Rhode Island 
  • South Carolina 
  • South Dakota
  • Tennessee 
  • Utah 
  • Vermont 
  • Virginia
  • West Virginia
  • Wyoming

If you live in one of these states and are getting divorced, the guiding principle of your property division will be that of equitable distribution. In a nutshell, equitable distribution — also called equitable division — dictates that property be divided as fairly as possible.

This sounds reasonable, but it’s not necessarily simple. Before you can decide how to divide your items and assets, you must decide which items are on the table for splitting.

  • Marital property is property owned by the two of you. This property is on the table for splitting during divorce negotiations.
  • Separate property is property owned by you that is not on the table for splitting. The question is, which of your items are considered separate property?

What is separate property in an equitable distribution state?

Generally speaking, separate property (and, likewise, separate debt) is that which was obtained by you prior to your marriage or after separation. But there are exceptions. For example, separate property that was commingled with marital property during a marriage may now be considered marital property.

Example: Let’s say you lived in a family home you inherited from a grandparent before getting married. After the wedding, your spouse moved in. The home is now your marital home, not your separate property.

Example: Your grandparent gave you a $15,000 savings bond when you graduated from high school. This money was never touched during your marriage. Thus, it is your separate property.

Will you have to give your spouse your separate property in divorce?

In an equitable distribution state, as mentioned, the ultimate goal of property and debt division in divorce is fairness. Although your separate personal property should theoretically be kept separate, it is possible for a judge to order you to give some of your separate property to your spouse in the name of fairness.

Example: Let’s say you want to keep a marital vehicle with a Kelley Blue Book value of $15,000. During the financial disclosure process, you reveal the aforementioned $15,000 savings bond – your separate property – given to you by your grandparent. The judge could potentially order you to give your spouse the total value of the savings bond in exchange for the vehicle.

Some people live in a community property state rather than an equitable division state. There are nine community property states. The goal in these states is an equal division of property rather than a fair division. Find out your state’s property division laws before proceeding with divorce.

Getting legal advice

Fair distribution of marital assets is the goal in an equitable distribution state. But “fair” is a vague term that can instill apprehension and fear in the heart of a divorcing person.

If you’re struggling to figure out how to divide marital assets between yourself and your spouse, Hello Divorce can help. We offer the following services which may be of interest to you:


Our flat-rate mediation services match you with a professional mediator who can help you and your spouse decide how to divide your assets – even if the two of you don’t get along.

Legal coaching

Our legal coaches are attorneys who can advise you on the next steps as you and your soon-to-be former spouse figure out what to do with your marital assets.

Free consultation

At Hello Divorce, we offer a lot more than mediation and legal coaching, but the best way to learn about other options is to talk to one of our account representatives in person. Click here to claim a spot on our calendar.

Senior Editor
Communication, Relationships, Divorce Insights
Melissa Schmitz is Senior Editor at Hello Divorce, and her greatest delight is to help make others’ lives easier – especially when they’re in the middle of a stressful life transition like divorce. After 15 years as a full-time school music teacher, she traded in her piano for a laptop and has been happily writing and editing content for the last decade. She earned her Bachelor of Psychology degree from Alma College and her teaching certificate from Michigan State University. She still plays and sings for fun at farmer’s markets, retirement homes, and the occasional bar with her local Michigan band.