A marital residence refers to property where a married couple lived together before filing for divorce or separation.  In the event of divorce, a married will couple will usually split proceeds from the sale of the marital residence.  In community property states, this usually results in a 50-50 split of the property.  This can change depending on the individual factors associated with the divorce case, as well as the state laws (not all states follow community property rules).

The marital residence can also play a key role in other determinations related to divorce.  For example, the martial residence often plays a role when determining whether spousal abandonment or desertion occurred.  If the one spouse doesn’t return to the marital residence after a reasonable amount of time, it could be evidence of abandonment.

You should note that the term “martial residence” is usually only associated with divorce or legal separation. 

Are There Any Factors That Might Make the Marital Residence Separate Property?

As mentioned, the marital residence is almost characterized as community (shared) property for the purposes of divorce.  However, there are certain instances where portions of the property interest can be attributed only to one spouse (separate property).  Upon divorce, the spouse will be entitled to their full share of the interest.  This may involve situations such as:

  • Property Improvements:  A party in a divorce may be entitled to the costs of property improvements to a marital residence.  It is usually a requirement that the improvements were made using the spouse’s separate funds.  Also, it helps to prove that the improvement was made for the spouse’s own individual use (such as a personal workspace added to the back of the home)
  • Down Payments:  A party to the divorce may be entitled to separate distributions regarding down payments which were made to the house using their separated funds.  This is true even if the entire property is considered marital property

Again, these are somewhat unique legal distinctions, and their availability will depend on local marital property laws.  In some cases, the marital property may be subject to a judicial sale, especially if there is an outstanding debt associated with the property. 

Do I Need a Lawyer for Help With Marital Residence Issues?

The laws governing marital residence can be very different from state to state.  Also, each property will have a different background and history that can affect the outcome of the distributions during a divorce.  Thus, you may wish to hire a qualified divorce lawyer or a family lawyer if you need help resolving marital residence issues.  Your attorney can represent your interests in court and can help you obtain a favorable outcome.