Divorce and custody proceedings can be highly charged, emotional, and stressful. One of the first questions you might ask yourself is whether or not you should continue to live under the same roof with your soon-to-be ex-partner until the finalization of your divorce.
There are no hard and fast rules dictating who should remain in the shared residency, but generally speaking, courts will often grant one party exclusive use and possession of the marital home. If you’d like to be the one remaining in the marital home, then you’ll have to petition the court for exclusive occupancy. This guide tells you everything you need to know about exclusive use and possession of marital residency.
The matrimonial home is commonly the largest and most contentious asset in a divorce. While proceedings are underway, meaning before the conclusion of the divorce hearing, the spouses are left in a grey area, where both or either of them can stay in the house.
Owing to the emotional nature of legal separations, the partners might want to live separately but often can’t reach a consensus on who should vacate or who should stay. The concept that one partner can stay and use the matrimonial residence temporarily while the divorce is underway or permanently when the divorce is finalized is called “exclusive use and possession.”
When one spouse has exclusive use and possession of the matrimonial residence, the other spouse is barred from returning to the residence. If, say, there are kids involved in the divorce tussle, the presiding judge will likely award the marital home to the parent who spends the most time with them.
The fastest way to gain temporary “exclusive use and possession” is for the spouse to petition the court for a restraining order or domestic violence injunction.
However, for either method, you must have good reasons for petitioning the court.
Usually, this involves evidence of abusive behavior, domestic violence, conduct that’s emotionally or psychologically detrimental to the kids, or a risk of physical harm. Just being uncomfortable with the living conditions will possibly not justify depriving the other spouse of a home.
For instance, in the matter of Laczkowski vs. Laczkowski in 1995, the judge ruled that the plaintiff (the wife) should be awarded exclusive possession when she alleged that the defendant (the husband) subjected her to enormous “intimidation and mental torture,” excluded her from the family home and that he threatened her with violence. Moreover, the plaintiff demonstrated that her current situation was not conducive to a harmonious home life both for herself and her daughter. Ultimately, the court passed that the wife had enough reason to stay alone with the kid in their matrimonial residency.
If there’s no violence, one spouse can file a motion with the judge requesting exclusive use and possession of the marital home.
You must allege facts in your petition sufficient to convince the judge that the only way to protect yourself and your kids is to deprive the other spouse of the shared residency. The other spouse must be notified of this hearing and has a chance to object to it.
In addition, you can be granted exclusive possessive if the other spouse willingly vacates the matrimonial home and establishes a new home elsewhere.
It’s also important to note that in these types of hearings, the court often acts and rules in the children’s best interests as provided for by section 23P.S. 401(h) of the Pennsylvania Divorce Code.
Petrelli Previtera, LLC’s newest associate, Marianne McGinty, sheds more light on this aspect and talks about a recent divorce case she handled.
“When you are asking the court to grant (exclusive use and possession of the marital home), there has to be some type of toxicity in the environment. Like, is there yelling? Is there physical violence?”
Attorney McGinty highlights that even in situations where there’s no physical violence, the court can still grant the petition for exclusive use and possession of the marital home. But the evidence has to be concrete. She talks of a recent case she tackled where the wife wanted the husband out of their shared residency because he allegedly spent most of the time playing video games. McGinty and the plaintiff made the argument that the husband was basically a squatter in the house. Sounds petty, right? Surprisingly enough, the court granted their petition!
“And while there was no immediate harm to the children, eventually there would be because the children weren’t seeing a good, positive relationship. They were just seeing a dad who was not going to work. He wasn’t contributing to the family’s needs. He wasn’t participating in anything. And the judge actually likened him to a drug addict…”
Attorney Marianne McGinty sums it all up by saying:
“And I also felt that it was an area that really hasn’t been explored or litigated…So I thought, well, you know what isn’t this some form of emotional abuse? You’re not even participating. It doesn’t have to be outward (physical). It could just be lack of participation maybe.”
This is to say that you don’t need evidence of physical abuse to obtain an order for exclusive use and possession of a marital home. With a competent family lawyer by your side and enough evidence of emotional abuse or lack of participation, you could potentially convince the court to rule in your favor.
It is difficult to ask the court to award the marital home to one person. Besides, the default action in a contested divorce is to sell all of the marital assets and distribute the value of the assets equally between the spouses.
A marital home can only be awarded exclusively to one party if there is a “special purpose,” but these instances are few and far between. What is considered a “special purpose” is ultimately up to the presiding judge to decide.
If at all you decide to change the locks to the shared residency without a court order awarding you exclusive possession, one of these two things is likely to happen:
All in all, it’s not worth it to switch the locks to a marital home unless one partner has been granted exclusive possession.
If you are granted a temporary injunction, your spouse has no legal right to get near your marital home or place of work. If they do, call the law enforcers immediately.
Your partner can return to the house to collect personal belongings, but this must be done with your approval. Typically, the spouse requests the court (by motion/through his or her attorney) to return his/her things. Even then, he/she must come accompanied by the police.
It’s prudent not to contact your spouse directly if there’s a permanent or temporary injunction in place. Doing so will only give the illusion that you no longer fear for your life or that you’ve forgiven the other party of any previous misdeeds.
If you have a pending divorce and feel like you are pressed for money and can’t afford to fulfill the rent payments or monthly mortgage, you can ask the court to “maintain the status quo.”
In Pennsylvania, Texas, New Jersey, and most other states in the US, there’s an administrative order known as the status quo, which requires the soon-to-be ex-spouses to shun from disrupting the norm created throughout the length of the marriage. This could include anything like who was supposed to pick up the kids, who was required to pay the mortgage, who was supposed to offset the monthly bills, and so on.
While these temporary administrative orders might not last forever, they will at least give you enough time to come up with a plan of action that will allow you to continue caring for yourself and the children after divorce.
No. A court may grant exclusive occupancy regardless of whose name the marital house is titled in. In fact, ownership of a home is not necessary, and a court might order exclusive use and possession of leased properties as well.
At Petrelli Previtera, LLC, we understand how trying and emotional the divorce process can be. More so when it’s your marital home at stake. Our award-winning family law attorneys can work with you and your soon-to-be-ex to agree on your marital property and living arrangement and will help you get the closure you need to move on from your marriage. Bringing clarity out of divorce and family law chaos is our forte. Schedule a consultation with one of our family law attorneys or call (866) 465-5395 now, and take the first step toward planning a better tomorrow!
