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 Hawaii, which is not a community property state but rather follows the principle of equitable distribution, 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, the court will aim to divide marital property, including the marital home, in a way that is fair and equitable, though not necessarily equal. Factors such as each spouse's economic circumstances, contributions to the marriage, and the best interests of any children involved will be considered. Decisions about who stays in the marital home during separation or after divorce can be complex and may be influenced by temporary orders or agreements. If the home is separate property, owned by one spouse prior to the marriage or acquired by gift or inheritance, it may not be subject to division, but the other spouse may have certain rights if they contributed to its value. Spouses facing decisions about the marital home should consult with an attorney to understand their rights and obligations and to navigate the legal implications of their choices.