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.
