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 Montana, 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, Montana courts aim to divide marital property equitably, though not necessarily equally, based on a variety of factors outlined in Montana Code Annotated § 40-4-202. These factors include the duration of the marriage, the age and health of the parties, their occupations, amounts and sources of income, vocational skills, employability, estate, liabilities, and needs of each party, as well as the custodial parent's need to maintain the home for the children. When spouses decide to divorce, legally separate, or live apart, decisions about who stays in the marital home can have significant legal implications. Temporary orders may be issued to determine who has the right to stay in the home during the divorce proceedings. Ultimately, the division of the home will be part of the final divorce settlement. Spouses should consult with a family law attorney to navigate these issues and make informed decisions about their rights and obligations concerning the marital home.