Marital Property

The marital property system has evolved slowly from a common law tradition that was steeped in gender bias. Today, some states apply an updated common law system, while others are considered community property states.

 

Common Law

1. History

   1. At common law, marriage merged the husband and wife into one person.

   2. A woman’s legal existence ceased upon marriage.

2. Rights

   1. Upon marriage, the husband took possession of all of his wife’s property and was entitled to the profits.

   2. The wife could regain control of her land only through divorce (which was rare) or the death of her husband.

 

Modern Approaches

1. Modern common law

   1. Under common law reforms, property belongs to the spouse who acquired it.

   2. Upon divorce, common law states are governed by equitable distribution. Factors considered in equitable distribution include the duration of the marriage, the age and health of the parties, occupation, income, and several other factors.

2. Community property

   1. Under the community property system, all earnings and property acquired with the earnings during the marriage are community property. Each spouse has a one-half interest in the property.

   2. Property acquired before marriage or through gift or devise during marriage is considered separate property.

   3. Upon divorce, the spouses keep their separate property and divide the community property.