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 Delaware, the marital home is typically considered marital property if it was acquired during the marriage, regardless of whose name is on the title. Upon divorce, Delaware follows the principle of equitable distribution, which means that the court will divide marital property in a way that is fair but not necessarily equal. Factors such as the length of the marriage, contributions to the marriage by each spouse, and the economic circumstances of each spouse are considered. If one spouse owned the home prior to the marriage, it may be considered separate property and not subject to division, unless it has been commingled with marital assets. Decisions about who stays in the marital home during separation or after divorce can be complex and may be influenced by various factors, including child custody arrangements and financial considerations. It is important for spouses to consult with an attorney to understand their rights and obligations regarding the marital home in the context of separation or divorce in Delaware.