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Home » Can You Get Exclusive Possession of Your Home During Your Divorce?

Can You Get Exclusive Possession of Your Home During Your Divorce?

May 5, 2023

When couples file for divorce, a common issue is whether they will continue to live together while the divorce is pending. Often, one spouse will decide to move out. If that doesn’t happen, one spouse may want to formally request the other one move out of the house. If you are going through a divorce, there are two ways you can get exclusive possession of your home.

Automatic Order Rule

Before attempting to obtain sole possession of your house, it is important to understand your legal rights and obligations. Once a divorce action is filed, the Automatic Orders go into effect. They state that if the parties are living together on the date of service of the Automatic Orders, neither party may deny the other party use of the parties’ current primary residence whether owned or rented property, without an order of the Court. This provision does not apply if there is a prior contradictory order of a judicial authority.

Accordingly, you cannot lock your spouse out of the house, nor can your spouse do that to you.

Agreement on Exclusive Occupancy

One way to resolve the issue of possession of the home is by coming to a mutual agreement. Nothing in the Automatic Orders rule prevents the parties from negotiating and signing an agreement as to who gets to occupy the home during the divorce. However, there are a few things to keep in mind.

If you have minor children, it is advisable to have a Parenting Plan in place before one of you voluntarily moves out. This ensures continuing access to the children for the one leaving the home.

Occupancy of the home does not affect ownership rights and property division. As a result, even if your spouse voluntarily vacates the premises, you won’t have greater ownership rights to the home after divorce. Ownership and division of marital property are separate issues in divorce. 

Court Order Awarding Exclusive Occupancy

If you and your spouse cannot agree, the other way to obtain sole possession of the home is by filing a Motion in Court. The Motion must provide information on the following:

  • nature of the property (owned or rented)
  • if owned, who is the owner
  • how long has it been owned or rented
  • who lives in the home (all inhabitants)
  • how long has each party lived in the home
  • reasons for seeking exclusive occupancy

Valid grounds for requesting exclusive occupancy include that the home environment is toxic or there is physical or psychological abuse, harassment, or substance abuse by one party. Importantly, simply not getting along with your spouse is not a valid reason for seeking exclusive possession.

The Motion will be decided by the Judge after a full Hearing unless the parties can come to an agreement. Note that the court will only determine occupancy of the home, not ownership. Even if the home is in one party’s name only, the other spouse can be awarded occupancy. 

If you are considering divorce, hiring an experienced lawyer is crucial. Our attorneys have extensive experience addressing all issues that may arise in divorce including resolving disputes that occur during the pendency of the action like who gets to stay in the marital home. Contact us to discuss how we can help you with your divorce.

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