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 Wisconsin, which is a community property state, the marital home is typically considered marital property if it was acquired during the marriage, regardless of whose name is on the title. This means that both spouses have an equal interest in the property. Upon divorce, the marital home is subject to division along with other marital assets. Wisconsin courts aim for an equal division of property, but they can also consider factors such as the length of the marriage, the property each spouse brought into the marriage, and each spouse's economic circumstances when dividing assets. Decisions about who stays in the marital home during separation or after divorce can be complicated and may be influenced by various factors, including temporary orders for exclusive use and possession issued during divorce proceedings. It is important for spouses to consult with an attorney to understand their rights and obligations regarding the marital home, especially before making the decision to move out, as this can have implications for property division, child custody, and spousal support.