Equitable distribution is the legal principle most states use to divide marital property in a divorce. In so-called equitable distribution or common law property states the court attempts to divide the spouses’ assets equitably (fairly) and may consider the value of a spouse’s separate property in making an unequal division of the spouses marital property.
In deciding what is an equitable distribution of the spouses’ property, the court may consider factors such as the relative education, employability, earning capacities, and separate property assets (acquired before marriage) of the spouses, and whether one spouse’s infidelity or abusive behavior, for example, was a greater factor in the breakup of the marriage.
In contrast, if the spouses live in a community property state the court generally begins with the presumption that the spouses’ marital or community property will be divided equally.
But in practice, the difference between the division of assets in community property states and in equitable distribution states is sometimes not as great as it may seem, as the court in a community property state may have the discretion to divide the spouses’ community property on a 60-40, 70-30, or other unequal basis—and to order one of the spouses to pay all or most of the community debts—based on factors such as the relative education, employability, earning capacities, and separate property assets (acquired before marriage) of the spouses, and whether one spouse’s infidelity or abusive behavior was a greater factor in the breakup of the marriage.
Community property states generally include Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
Texas is a community property state, which means that in the event of a divorce, the court starts with the presumption that all property acquired during the marriage is community property and should be divided equally between the spouses. However, this does not mean that the division is always a strict 50-50 split. Texas courts have the discretion to order an unequal division of community property based on various factors, including the spouses' education, employability, earning capacities, separate property assets, and whether one spouse's misconduct, such as infidelity or abuse, contributed to the dissolution of the marriage. Separate property, which includes assets acquired before the marriage, inheritances, and gifts, is not subject to division and remains with the original owner. It's important to note that while the starting point is an equal division, the actual division of assets in Texas may be adjusted to achieve a result that the court deems 'just and right' under the circumstances.
