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Exclusive Occupancy of the Marital Home

Posted by attorney Kenneth Keith

Exclusive use and occupancy is, basically, just a way of saying the Court removes your spouse from the home and you or you and your children get the exclusive right to live there, is an option available only through the Supreme Court in the framework of your action for divorce or separation. It is differentiated from removal with Orders of Protection, which are issued by Family Cort, Supreme Court and courts of lower criminal jurisdiction, which require a different showing for an Order to issue. It can be sought as part of a _ pendente lite_(during the case) motion should things in your house be such that either your spouse’s presence in the home causes domestic strife and that your spouse has established an alternative residence or that exclusive occupancy is necessary to protect safety of persons or property at the premises (it is normal under this second test that most applications are brought). As the technical requirements to secure an Order of Protection are strictly enforced frequently an application for exclusive use and occupancy is the only true option.

This is an extremely valuable toolfor a divorce lawyer both to afford you and your children the peace at home to which you are entitled and to improve your position (or, conversely, when representing the person whom the Court is being asked to remove, the defense of such a motion is critical) so as to allow the matter to resolve more quickly and to your benefit. An award of exclusivity impacts not just the living arrangements but custody, child support, spousal support and sometimes is so impactful that it determines the path and resolution of the entire matter. As a Judge’s decision to remove a party from the home is discretionary, absent a showing that such discretion was abused (very difficult to do) these decisions are unlikely to be appealed and, if appealed are unlikely to be disturbed.

The general rule is that exclusive possession, pendente lite should not be granted without a hearing. However, exclusive use and occupancy may properly be awarded without a hearing upon a sufficient showing of abuse that is supported by uncontroverted medical evidence.

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