Property division issues in divorce cases have historically been handled using two very different approaches. Most states took what is referred to as the “common law” approach, which granted property to the spouse who actually held title. A minority of states took the “community property” approach, which reasoned that because marriage is an economic as well as an emotional partnership, it should be presumed that both parties contributed equally to meet the family’s needs, and therefore property should be split evenly at divorce, regardless of who personally held title. Today, the two systems have been combined to a certain extent by shifting the emphasis to equitable principles in property division, although the community property states (Arizona, Georgia, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin) still favor a 50/50 split.

In equitable distribution states, a judge will simply try to divide the property in the fairest way possible under the circumstances. This means that instead of presuming one approach will fit all situations, as the common law and community property approaches do, the court will consider all the factors involved, such as the relative contributions of both parties, the length of the marriage, and the employment prospects of both parties after the divorce is finalized. It should be noted however, that all the property division approaches only apply to marital property. Property that was acquired before the parties were married, as well as various other marital property exceptions, is not counted by the court.