The marital home in which spouses live during the marriage is usually marital or community property because it was acquired during the marriage, is jointly owned by the spouses, and is subject to division upon divorce. When spouses decide to divorce, legally separate, or simply live apart, there are potential legal implications for who remains in the marital home and who moves out—whether the home is separate property or marital property. These laws vary from state to state, and spouses should consult with a family law attorney to fully understand their options and protect themselves from the consequences of an uninformed decision.

In California, which is a community property state, the marital home is typically considered community property if it was acquired during the marriage, regardless of whose name is on the title. This means that both spouses have an equal interest in the property. Upon divorce, the marital home is subject to division, which can be done in various ways such as selling the home and dividing the proceeds, one spouse buying out the other's interest, or occasionally, continuing co-ownership post-divorce. Decisions about who stays in the marital home during separation can have legal implications, including affecting child custody arrangements, spousal support, and the division of property. It is important for spouses to consult with an attorney to understand their rights and obligations, and to make informed decisions about the marital home during separation or divorce proceedings.