Marital Residence Lawyers

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What is a Marital Residence?

Marital residence is a term utilized in divorce law to refer to the property where the couple resided together before the breakdown of the marriage. Once a spouse leaves the marital residence for a reasonable amount of time, depending on the situation, that spouse may be found to have abandoned or deserted the remaining spouse.

In some cases, a spouse is entitled to a credit toward the marital residence, even when it is held jointly. For instance, a down payment that consists of separate assets may be backed out of the value of the property and returned to the party who contributed the separate asset, even where the property is deemed marital.

Furthermore, the court may order the home to be sold. If one of the parents receives custody of the children, the court can delay the sale (generally until after the child has graduated high school). The court can also award the house to one of the spouses. This will be decided by all the factors that impact equitable distribution. The court will consider how much the home is worth. Additionally, it will examine any mortgages and other types of housing options.

What are Exclusive Occupancy Rights?

Exclusive occupancy rights grant one spouse the right to reside in the house. The other spouse must find somewhere else to live. These rights can be given to the parent with custody of the children if the court has delayed the sale of the home.

They can also be given for the safety of one of the spouses while the divorce is happening. Courts can grant orders of protection, which can make the person the order is taken against keep away from the home.

What Is Marital Property?

The Law Info research website describes marital property as a U.S. state-level legal term that refers to property acquired during a marriage. Property that an individual owns before marriage is known to be separate property, as are inheritances or third-party gifts granted to an individual during a wedding. Marriage partners may choose to exclude particular property from marital property by signing a prenuptial or a postnuptial agreement.

Additionally, some of the details described below will not impact a couple unless they divorce or until one of them passes away. But couples need to learn about the different types of marital property so that when they acquire real estate or other property, they are aware of how ownership can be arranged and choose the structure that represents their true intentions.

Furthermore, marital property includes real estate and other property a couple buys together during their marriage, such as a home or investment property, cars, boats, furniture, or artwork, when not acquired by either as separate property.

Bank accounts, pensions, securities, and retirement accounts are also included; even an Individual Retirement Account, which is individually owned by law, is marital property if earned income is contributed to it during the marriage.

Lastly, a note to remember is that this legal definition of marital property primarily exists to protect spousal rights. A couple’s permanent legal residence—in either a common law property state or a community property state—determines which laws govern their marital property and how it can be divided if their marriage ends in divorce.

Who Are the Community Property States?

The states known to be following community property include Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin. Community property states abide by the rule that all assets acquired during the marriage are considered “community property.”

Marital property in community property states is owned by both spouses equally. This marital property encompasses earnings, all property bought with those earnings, and all debts accrued during the marriage. Community property starts at the marriage and ends when the couple physically separates with the intention of not continuing the marriage. Therefore, any earnings or debts originating after this time will be considered to be separate property.

Furthermore, any assets acquired before the marriage are considered separate property and are owned only by that original owner. But, a spouse may transfer the title of any of their separate property to the other spouse or the community property (making a spouse an account holder on a bank account). Also, spouses can commingle their separate property with community property, for instance, by adding funds from before the marriage to the community property funds.

Spouses may not transfer, alter, or eliminate any whole piece of community property without the other spouse’s permission, but can manage their half. However, the whole piece includes the other spouse’s one-half interest. Meaning, that spouses cannot be alienated from the one-half that belongs to them.

The separate property includes:

  • Property owned by just one spouse before the marriage;
  • The property was given to just one spouse before or during the marriage; and
  • Property inherited by just one spouse.

The community property includes:

  • Money either spouse earned during the marriage;
  • Items purchased with money either spouse earned during the marriage; and
  • Separate property has become so mixed with community property that it cannot be identified.

Most states are common law property states. The common law system provides that property acquired by one member of a married couple is owned completely and solely by that person. Under this legal terminology, if the title or deed to a piece of property is placed in the names of both spouses, the property belongs to both spouses. If both spouses’ names are on the title, each owns a one-half interest.

Furthermore, under common law, when one spouse passes away, their separate property is distributed according to their will—or according to probate, in case there is no will in effect. How this distribution pans out varies on which type of legal ownership the spouse has in any marital property. For instance, if they own property in “joint tenancy with the right of survivorship” or “tenancy by the entirety,” the property goes to the surviving spouse.

This right is independent of the deceased spouse’s will states. However, if the property was owned as “tenancy in common”, then the property can be granted to someone other than the surviving spouse, per the deceased spouse’s will. It is significant to note that not all property has a title or deed. In this case, typically, whoever paid for the property or received it as a gift owns it. In a legal separation or divorce in a common law state, the court can decide how marital property is divided according to its laws.

Lastly, marital property in community property states is owned by both spouses equally. This marital property includes earnings, all property bought with those earnings, as well as all debts accrued during the marriage. Earnings and debts acquired before the marriage are separate property, as is an inheritance of only one spouse, although the couple may co-mingle property if they choose. Couples residing in community property states have to account for their community income as well as their separate income if they file separate federal tax returns.

When Do I Need to Contact A Lawyer?

If you need assistance with marital residence issues, it is recommended that you reach out to a local family law attorney experienced in the area to guide you in your case. Your attorney can represent you in court and provide you with guidance about the laws.

Law Library Disclaimer


16 people have successfully posted their cases

Find a Lawyer