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marital home

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 Texas, 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 both spouses have an equal ownership interest in the property. Upon divorce, the court will divide the community property in a manner that is 'just and right,' which may not always be a 50/50 split, depending on the circumstances of the case. If one spouse owned the home before the marriage, it may be considered separate property, but the other spouse may have a claim to any increase in the home's value during the marriage. When spouses decide to divorce, 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 final divorce decree will determine the disposition of the marital home. Spouses should consult with an attorney to navigate these issues and to understand how to protect their rights and interests regarding the marital home.


Texas Statutes & Rules

Texas Family Code, Section 7.001 - Division of Property
This statute is relevant as it outlines the general rule for division of property, including the marital home, upon divorce in Texas.

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.

Texas Family Code, Section 3.002 - Community Property
This statute defines what is considered community property in Texas, which generally includes the marital home 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.

Texas Family Code, Section 3.001 - Separate Property
This statute defines separate property, which is crucial in determining whether the marital home is subject to division upon divorce.

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.

Texas Family Code, Section 6.703 - Temporary Orders During Divorce Proceeding
This statute is relevant for spouses who are in the process of divorce and are deciding who will stay in the marital home during the proceedings.

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.

Texas Family Code, Section 6.502 - Injunctions
This statute is relevant as it allows for legal measures to protect spouses and property, including the marital home, during a divorce proceeding.

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.

Texas Family Code, Section 6.751 - Use and Possession of Property
This statute addresses the use and possession of the marital home during a period of separation before the finalization of a divorce.

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.

Federal Statutes & Rules

28 U.S.C. § 1738 - Full Faith and Credit
This statute is relevant because it requires federal and state courts to recognize and enforce valid judgments, including divorce decrees and property division orders, issued by courts in other states.

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.

26 U.S.C. § 1041 - Transfers of Property Between Spouses or Incident to Divorce
This statute is relevant because it addresses the tax implications of transferring property, including the marital home, between spouses during divorce.

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.

Servicemembers Civil Relief Act (SCRA) - 50 U.S.C. §§ 3901-4043
This act is relevant for military spouses who may face unique challenges when dealing with the marital home during a divorce or separation.

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.

Uniformed Services Former Spouses’ Protection Act (USFSPA) - 10 U.S.C. § 1408
This statute is relevant for divorcing military spouses as it pertains to the division of military retirement pay, which can affect the overall division of assets, including the marital home.

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.