As a divorce lawyer inWestchester County, New York a common situation indivorce cases is that both spouses reside at the same residence during thedivorce process or one spouse resides in the marital residence and the other returns at will frustrating the spouse who still remains at the residence.
In order to gain exclusive occupancy of the marital residence and prohibit a spouse from returning without a court order it is important to make a well thought out and through argument for exclusive occupancy.
Below are the most common questions regarding exclusive occupancy.
Can the New York divorce courts order exclusive occupancy?
Yes, Domestic Relations Law section 234 permits the courts to award exclusive occupancy and possession of the marital residence to a party where there is sufficient cause. This is not a final determination of title or equitable interest in the property only who will reside in the marital residence while the case is pending.
Do I have to go to court to get exclusive occupancy?
Usually you will need to go to court to be awarded exclusive occupancy. Typically there will be a hearing with evidence presented. A hearing may not be necessary if exclusive occupancy award is necessary to protect the safety of the person or property.
What do I have to establish before the court to obtain exclusive occupancy?
One of the following must be established:
- One party's presence has caused marital strife within the marital residence (This does not include "petty harassments")
- One party has voluntary vacated the marital residence and established a separate residence
- There is a potential for harm to a person or property due to physical violence.
What are some of the factors a court will consider?
- Alternate residence of the vacating party;
- Necessity to protect the safety of persons and property residing in the residence or that a spouse poses a threat to the other's person or property.
- Acts of violence
- The existence of any orders of protection
When is a hearing not necessary?
A hearing for exclusive occupancy may not be required if the following can be shown:
- Evidence of prior police intervention
- Existence of an Order of Protection
- Uncontroverted medical evidence
- Corroborative third party affidavits
- Domestic turmoil and
- The effect one party and/or their presence has on the children
For example a hearing was not required when a wife made allegations of physical assaults that were supported by the children's affidavits (ages 15 and 17) which also stated they were afraid to live with their father and where the husband did not seek custody. No hearing was necessary the court could determine exclusive possession was necessary to protect the safety of the family.
We take the time to explain the legal process and strategy to you, listen to your concerns, answer your questions and offer you advice to achieve to protect your rights.
If you are considering a divorce or are in the middle of the divorce process and need help call our office for a free consultation. (914) 946-4808.