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 Idaho, 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 court will generally divide community property equally between the spouses, unless there are compelling reasons not to. If one spouse owned the home before the marriage, it may be considered separate property, but any increase in value during the marriage could be subject to division. When it comes to who stays in the marital home during separation or after divorce, the court may consider factors such as child custody arrangements and each spouse's financial situation. Temporary orders may be issued to determine who has the right to stay in the home while the divorce is pending. Spouses should seek the advice of an attorney to navigate the complexities of property division and to understand their rights and obligations regarding the marital home during separation or divorce proceedings.