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 Mexico, 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 the home is owned equally by both spouses and is subject to division upon divorce. When a couple decides to divorce, legally separate, or live apart, decisions about who stays in the marital home can have significant legal implications. New Mexico courts aim to divide community property equitably, though not necessarily equally, and will consider various factors when deciding who should remain in the home. These factors can include the best interests of any children involved, each spouse's financial situation, and the circumstances leading to the separation. If the home is separate property, meaning it was owned by one spouse before the marriage or acquired by gift or inheritance, it may not be subject to division. However, the non-owning spouse may have certain rights if they contributed to the home's maintenance or mortgage payments. Spouses facing these decisions should consult with a family law attorney in New Mexico to understand their rights and options and to navigate the legal process effectively.