Use of the Marital Home During Divorce

By Staff Writer

Once a divorce action has been commenced, where will you and your spouse reside? All too often, divorcing couples, are faced with the emotionally wrought possibility of continuing to live together in the same home. Courts do have the authority to issue rulings regarding temporary use of the marital residence. Known as “Exclusive Possession” of the marital residence, if awarded, such an Order dictates that the other spouse cannot enter the residence. If they do, they are subject to arrest for trespass or contempt of Court for violating a Court Order.

In New York, a Judge will allow one party to use the marital residence to the exclusion of the other party if one of two sets of circumstances occurs. The first circumstance is when one of the parties has moved out of the marital residence and established a separate residence. If one spouse has voluntarily established a separate residence, a Court is likely to Order that that spouse may not visit or move back into the marital residence.

The second circumstance where a Court will grant exclusive use and possession of a residence is if there is a “threat to persons or property”. Most often, Courts interpret a “threat to persons or property” to mean physical abuse or violence.

If domestic violence is occurring, a Court will order the abusing party to stay out of the marital residence. However, different Judges assess domestic violence in different ways. If you think you have been subjected to domestic violence, speak with your attorney. If the abuse is physical, an Order granting exclusive possession will be granted more readily. If the abuse is verbal, the likelihood of the Court granting an Order of Exclusive Possession depends upon the severity of the conduct and the Judge’s attitude towards such conduct. If the parties simply do not get along and the household is under a great deal of stress, the Court will typically not order one of the parties out of the house.

If the Court will not order the other party to move out of the residence, a very common question asked is, “Can I move out?” The answers to this question are as varied as the cases that your attorney confronts. Whether to move out or not is dependent upon a number of factors. Are the children with you? Is there a Court Order preventing the move? Can you afford to move? Do you want to retain the house?, Can you take your other belongings with you?, Are you under a great deal of stress as a result of staying in the house?, and more. That is why it is important to discuss this with your attorney in depth before making a decision.

Making the move out of the marital residence is as much a financial decision as an emotional one. Some couples going through Divorce and Separation can afford to maintain two residences; others cannot. If one partner leaves, the marital residence can end up in foreclosure or bills in joint names may be left unpaid. Those financial issues should be considered before any decision is made to move out of the residence.