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Brooklyn Family Law, Blog

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October 20, 2014
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During the Divorce Action, Who gets Exclusive Use and Possession of the Marital Residence?

Divorce Action Use Possession Marital residenceWhile your divorce is pending, various things can happen with regard to the use and possession as well as who is to be living in your marital residence. The simplest one, and also the most emotionally difficult, is that both parties stay in the marital residence, with the children if there are children. If there is no reason to ban one person from the residence on the basis of something like domestic violence or risk of harm to the children, then you will likely all be living together throughout the divorce action. This is rarely easy.

If one of the parties has already moved from the marital residence, particularly if there is domestic strife with both in the home, then the remaining party’s being able to obtain exclusive use and possession of the marital residence, free of the intrusion of the other party, is a likely possibility. The likelihood is even higher if the children have been left in the marital residence with one parent when the other parent has moved out. The Court acts to avoid uprooting or disturbing the children as much as possible. The children staying in the marital home is typically the choice by Judges to keep their environment stable. Therefore, children involved can improve one’s chances of getting the marital residence during the pendency of the divorce action. This does, though, bring the issue of child custody to the forefront which will be discussed elsewhere.

In the event there is a second marital residence, then it might be possible for one of you to get exclusive use and possession of one residence and the other of the second residence during your divorce action. It may even be possible for you to reach that agreement on your own and then just have the Court approve it. Remember that the Courts have a great deal of leeway in making these decisions in divorce actions, and you never have a guarantee. If it is possible for you and your spouse to reach a reasonable agreement on your own and then present it to the Court to order, you take no risk that a Court will come down against your request. Courts like people to make reasonable and fair agreements on their own.

When a Court awards exclusive use and possession of the marital residence during a divorce action, there is no consideration given to how the marital residence is titled or how it will be distributed by the Court at the end of the divorce action. But, the Court is also is bound not to deprive a title holder of possession of property acquired by them before the marriage. Therefore the Court has to do a balancing test where the marital residence is pre-marriage property of one spouse. You have no guarantee as to which way the scale will fall. This would be another reason to try to discuss these issues with your spouse and have your attorney draft an agreement on this limited issue so that you both have what you want, or as close as you can get it, while your divorce action is pending. But if there is no agreeing, and the living situation puts anyone at risk, you need to discuss this with your attorney as a possibility.

There will also be consideration by the Court as to who will be paying for this marital residence while occupied by only one person. That is why these motions to seek exclusive use and possession of the marital residence often include other requests such as maintenance, child support, exclusive use and possession of the furnishings in the marital residence and the like.

Please also take a look at “Who gets the marital residence in a divorce action?” which discusses this topic, too. It also talks about the method, a motion, used to obtain exclusive use and possession of the marital residence and other interim relief during the course of your divorce action.

Located in Brooklyn, NY, additional legal assistance in Use and Possession of the Marital Residence is available by contacting us, fill out our contact form on this page, or call us at 8555 736-2829 at Brooklyn family Law Practice.