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 York, the marital home is typically considered marital property if it was acquired during the marriage, regardless of whose name is on the title. This means that the home is subject to equitable distribution during a divorce. Equitable distribution does not necessarily mean equal, but rather what is fair and just, considering factors such as the duration of the marriage, the health and income of the parties, and the need of a custodial parent to remain in the home. 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 by the court to determine who will 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 an attorney to understand their rights and options regarding the marital home, as making an uninformed decision can have long-term financial and legal consequences.