In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. This includes the marital home, which is typically considered community property if acquired during the marriage.
Community property consists of the property, other than separate property, acquired by either spouse during marriage. This typically includes the marital home, unless it was acquired as separate property through inheritance, gift, or other means as defined by law.
A spouse's separate property consists of the property owned or claimed by the spouse before marriage, and the property acquired by the spouse during marriage by gift, devise, or descent, and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
After a petition for divorce is filed, the court may make temporary orders for the safety and welfare of the spouses or the children, as well as for the protection of the property of the spouses, including exclusive use of the marital home.
On the motion of a party to a suit for dissolution of a marriage, the court may grant a temporary injunction for the preservation of the property and protection of the parties as necessary, including an order directing one spouse to vacate the marital home.
In a suit for dissolution of a marriage, the court may make an order for the temporary use and possession of the property, including the marital home, as it deems equitable and just, considering the rights of the parties and any children involved.
Under 28 U.S.C. § 1738, also known as the Full Faith and Credit Clause, courts in the United States must give full faith and credit to the public acts, records, and judicial proceedings of every other state. This means that when a couple obtains a divorce decree, including orders related to the division of marital property, in one state, other states are required to recognize and enforce that decree as if it were issued by one of their own courts. This ensures consistency and predictability in the enforcement of divorce-related orders across state lines. However, this statute does not dictate how property should be divided; rather, it ensures that once a decision is made by a competent court, it will be respected nationwide.
The Internal Revenue Code at 26 U.S.C. § 1041 provides that no gain or loss is recognized on a transfer of property from an individual to (or in trust for the benefit of) a spouse, or a former spouse if the transfer is incident to divorce. This means that when the marital home or other property is transferred between spouses as part of a divorce settlement, the individual who transfers the property does not have to pay taxes on any gain from the transfer. The basis of the property in the hands of the transferee is the same as it would be in the hands of the transferor, essentially allowing the property to change hands without immediate tax consequences. This provision is particularly important for divorcing couples to understand as it affects the financial aspects of dividing marital assets.
The Servicemembers Civil Relief Act provides protections for military members as they enter active duty. It includes provisions that can affect divorce proceedings, such as delaying court actions and administrative proceedings. For example, if a servicemember is on active duty and unable to participate in the divorce process, the SCRA allows for the postponement of court and administrative hearings. This can impact decisions regarding the marital home, as the servicemember may not be able to attend hearings related to the property division. Additionally, the SCRA may provide certain protections related to mortgage interest rates and foreclosure actions on the marital home, which can be particularly important if one spouse is a servicemember.
The Uniformed Services Former Spouses’ Protection Act allows state courts to treat disposable military retired pay as either sole or community property depending on the state. While this statute does not directly address the marital home, it is significant in the context of divorce as it can influence the financial settlement between spouses, which may include the marital home. The USFSPA also provides certain benefits to former military spouses, such as medical benefits and commissary privileges, depending on the length of the marriage and the overlap with military service. Understanding the implications of this act is important for military families to ensure a fair division of assets and to make informed decisions regarding the marital home during a divorce.