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Exclusive Use & Occupancy of the Marital Home

Whether for better or for worse, married couples will often wait as long as they can before deciding to end their marriage. But filing divorce papers is often just the beginning of a lengthy divorce process that can take months if not years to be completed. Divorce does not always mean that one spouse will immediately pack their bags and leave, as oftentimes both spouses have contributed to the marital home's mortgage or rent and have an equal right to live in the home. This leaves many couples with the awkward situation of continuing to live in the same home as their spouse, whether it be by choice or due to financial necessity.

In these situations, both spouses may remain in the marital home unless they come to an agreement or if the court issues an order forcing one spouse to move out. In New York family law cases such as divorce, legal separation, or annulment, the court has the authority to award one spouse exclusive occupancy of the marital home to be used for his or her sole use, regardless of whose name is on the title. In other words, a home that is jointly owned by both spouses may be awarded to only one spouse for their exclusive use during the process of divorce.

Exclusive occupancy orders such as these are frequently used when an excluded spouse still retains a certain level of legal interest in the property in question. Temporary exclusive occupancy is not applicable in all circumstances, however, as a petitioning spouse must have a valid reason why their spouse must be removed from the home, such as to protect their safety or by showing that their spouse's presence has caused a considerable domestic strife that impacts their emotional wellbeing.

In instances where a petitioning spouse's safety is concerned due to domestic violence, sufficient evidence to warrant exclusive occupancy may include:

  • The existence of prior police intervention
  • The spouse's history of domestic violence
  • The existence of an order of protection
  • Medical evidence of abuse
  • Third party affidavits

Generally speaking, there needs to be a greater reason for an exclusive occupancy order than simple claims that the spouses do not get along or are acting unreasonable. The more specific the assertions, the greater then chances of approval by the courts. If there is insufficient evidence to support a seeking spouse's claims, the court may deny their request or schedule a hearing to further review the matter. Considering that it can take 30 to 60 days for a hearing to be held, and another 30 to 60 days to reach a decision, this waiting game may not make sense in all situations, as a divorce may sometimes be completed faster than it could take to receive temporary occupancy.

Divorcing? Call Peter L. Cedeño & Associates, P.C

If you are approaching a divorce or are knee-deep in divorce proceedings, you need an advocate on your side who can protect your interests during this difficult time. With more than 20 years of family law experience, our knowledgeable New York City divorce lawyers at Peter L. Cedeño & Associates, P.C. can provide the strong representation you need to help you pursue exclusive occupancy.

Call (212) 235-1382 or schedule a confidential consultation today to review your legal options.

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