Written by attorney Kenneth M Keith

Exclusive occupancy of the marital home

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. This 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 court, 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 motion, should your spouse's presence in the home cause domestic strife, 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 for exclusive occupancy 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 tool that can give you and your children peace at home, and improve your position to allow the matter to resolve more quickly to your benefit.

An award of exclusivity impacts not just the living arrangements but custody, child support, spousal support, and can be so impactful that it determines the path and resolution of the entire case. As a judge’s decision to remove a spouse from the home is discretionary, these decisions are unlikely to be appealed, and, if appealed, are unlikely to be overturned.

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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