If you're about to file for divorce, one of the terms you'll likely encounter is "equitable property division," which, to many, surprisingly doesn't mean equal split. You may also find it unexpected that more states apply this legal principle than the "50/50" rule of division of assets in divorce.
Indeed, Investopedia explains that laws surrounding equitable division of property apply to 41 U.S. states. The remaining nine follow the concept of "community property."
By better understanding these critical terms involving marital assets, you can make more informed decisions and protect your rightful share of properties following the dissolution of your marriage.
What Is the Meaning of Property Division?
In divorce proceedings, the term "property division" refers to a multi-step process that impacts a married couple's assets and debts.
The first step is identification. The party filing for divorce usually identifies and enumerates all of their spouse's properties (and debts). Uncovering all these (as there may be assets "hidden" away) often requires the help of a family or divorce attorney.
The divorcing spouse, with the help of their attorney, then conducts a thorough valuation. Valuation usually involves hiring licensed professionals to perform a comprehensive appraisal for divorce proceedings.
The appraisal assigns concrete monetary values to both assets and debts. Examples of assets are real estate property and savings accounts. Debts, on the other hand, can be mortgages, credit card debts, and other types of loans.
The final step is the "distribution" or division of marital property. Depending on the state where the couple has filed for divorce, family law courts may split assets and debts either equally or fairly. The latter doesn't always mean 50/50.
What Assets Are Untouchable During Divorce?
Many types of assets acquired during marriage become marital property (jointly owned by both spouses) and, therefore, get divided during divorce.
Still, there are some assets considered "untouchable," meaning courts can't split them. They remain protected as long as their owner doesn't mix or "commingle" them with marital funds. Another is if a valid property division agreement signed by both spouses identifies "jointly" owned assets.
Examples of such "untouchable" assets during divorces include properties that a person has:
- Owned before getting married (also called "separate property" or "pre-marital property")
- Acquired through individual inheritances
- Excluded in a prenuptial agreement
- Received as a gift solely for the named recipient
Money awarded to only one spouse during a previous legal proceeding often remains "untouchable" and under their sole ownership, too. An example is a personal injury award, a form of financial compensation given to individuals who've suffered harm due to someone else's negligence or recklessness.
What Is the Surprising Truth About Equitable Property Division Following a Divorce?
According to data published by the Pew Research Center in October 2025, over 1.8 million people in the United States divorced in 2023 alone. It also noted that a third of Americans who've ever married experienced a divorce, and that divorced adults have less wealth than their married counterparts.
Given those figures (particularly the last one), it pays to have a better understanding of the "surprising" truth behind equitable property division so that you can protect your rights and financial well-being following a divorce.
Not a 50/50 Split
Equitable isn't synonymous with equal. Rather, it means "fair."
In a divorce that involves equitable property division, the family law court handling the case will divide both jointly owned assets and debts fairly, but not always equally. Instead of being 50/50, it can be 55/45 or even 60/40.
Judges base their decision on how to divide assets and debts on several factors, including the duration of the marriage, the needs of the children (if there are any), and each spouse's:
- Earning power
- Current financial condition
- Age and health
- Contributions as a homemaker
Family law courts may also factor in misconduct, particularly if it has impacted the married couple's finances. An example is if one of the spouses was having an affair and spent considerable amounts of marital funds on their adulterous behavior.
More Common Than 50/50 Property Division
There are far fewer states that implement the 50/50 law when it comes to splitting marital property (officially known as "community property") than equitable property division. If it's one of the following, you'd have to split all of your marital or jointly owned assets equally, or by 50/50.
- Arizona (Arizona Revised Statutes 25-211)
- California (California Family Code Section 2550)
- Idaho (Idaho Code Section 32-712)
- Louisiana (Louisiana Revised Statutes 9:2801)
- Nevada (Nevada Revised Statutes 125.150)
- New Mexico (New Mexico Statutes Section 40-3-8)
- Texas (Texas Family Code, Chapter 7, Section 7.001)
- Washington (Revised Code of Washington 26.09.080)
- Wisconsin (Wisconsin Statutes § 767.61)
If the state where you're filing for divorce is not one of the above, the judge or court handling your case will follow equitable division rules.
Frequently Asked Questions
Can Married Couples Set Their Own Conditions Regarding Property Division?
Yes. Married couples who can come to a mutual understanding about dividing their assets and debts can establish a tailored, legally valid agreement listing everything that both sides have agreed upon.
An example is an agreement that entails dividing a house in divorce proceedings as the couple sees fit. It can be 70/30, 65/35, 60/40, or 50/50. Whatever they agree upon, as long as they sign a mutual agreement voluntarily, they don't have to follow equitable or community property laws.
Do Prenuptial Agreements Override State Laws?
Yes. In most cases, prenuptial agreements take precedence, so long as they don't violate federal or state laws. They must also be valid, meaning that both sides or parties were willing, and that they voluntarily signed the agreement before the marriage.
Valid prenuptial agreements typically override the state law, whether it's community property law or common (equitable distribution) law. If the agreement therefore states that one spouse gets 100% of the house following a divorce, the court must award the house to the named individual.
Keep These Facts About Property Division in Mind
Remember: Property division during a divorce rarely means 50/50 or equal distribution. Instead, it's more common for family law courts to divide assets (and debts) fairly, based on factors like age, health, income, and marital contributions.
Keep yourself informed with more family-related guides like this, or stay in the loop of the latest local and state events by checking out our site's in-depth news coverage.
This article was prepared by an independent contributor and helps us continue to deliver quality news and information.
