- In community property states, family courts divide marital property equally. In equitable distribution states, they apply a presumption that a 50/50 division is equitable, or fair, but allow for an unequal distribution where a party satisfies certain statutory "distributional factors." Regardless of whether a state falls under community property or equitable distribution, the law usually specifies that marital property consists of all property acquired by either spouse between the date of marriage and the date of separation (or date of divorce). The key factor in classifying property as marital versus separate is not titling, but rather means of acquisition. As such, if the house was purchased during marriage and titled to the wife, it remains marital property and the husband is entitled to either his half or his equitable share.
- Under both equitable distribution and community property schemes, separate property is property owned by either spouse before the date of marriage, property acquired by either party by gift or inheritance during the marriage, or property acquired after the date of separation (or divorce, depending upon the state) using post-separation or post-divorce efforts.
- Houses in particular can frequently be mixed assets, meaning they are comprised of both marital and separate components. As the definition of marital property includes equity in separately owned property built using marital efforts (making mortgage payments with money earned during marriage), the wife may have owned the house before getting married but owed money on it. As such, in a property division proceeding pursuant to divorce, her husband is entitled to his half or equitable share in the equity in the home that was built during the marriage. Part of the equity will be the wife's separate property, but part will be property of the marital estate.
- Courts prefer to make an in-kind distribution of the marital estate wherever possible. This means that a court will seek to achieve an equal or equitable division by giving each party assets of value and debt items intact. As selling an asset creates expense and waste, a court may prefer to leave the house and all its equity with the wife and compensate the husband for his share out of other marital assets or in the form of reduced responsibility for marital debt.