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 South Dakota, 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, South Dakota courts aim to divide marital property equitably, though not necessarily equally, based on a variety of factors such as the length of the marriage, the value of the property, and the contributions of each spouse to the marriage. If one spouse owned the home prior to the marriage, it may be considered separate property and not subject to division, unless the other spouse can show that they contributed to its value. When deciding who will remain in the marital home during separation or after divorce, the court may consider factors such as custody of children, financial stability, and each spouse's ability to obtain alternative housing. It is important for spouses to consult with an attorney to understand how these principles apply to their specific situation and to ensure that their rights and interests are protected during the process of separation or divorce.