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 New Hampshire, 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, New Hampshire courts aim to divide marital property equitably, though not necessarily equally, under RSA 458:16-a. This means the court will consider several factors to determine a fair distribution, which may not result in a 50/50 split. Factors can include the duration of the marriage, the age and health of the parties, the occupation and employability of each party, and the contribution of each spouse to the acquisition of the estate. When deciding who remains in the marital home during separation or after divorce, the court may consider the best interests of any children involved, the convenience and needs of each party, and other relevant factors. It is important for spouses to consult with an attorney to understand their rights and obligations regarding the marital home, as decisions made during separation or divorce can have long-term financial and legal implications.