The short answer is yes. The court can order that one spouse be removed from the marital residence while the other spouse can be granted exclusive possession of the marital residence. In practicality, the process and end result is not nearly that simple. There first must be on file a verified petition or verified complaint seeking that one spouse be temporarily evicted from the marital residence. The court can order granting exclusive possession to one spouse only in cases where the physical or mental well being of either spouse or their children is jeopardized by the occupancy of both parties.
The court will typically only make such a ruling upon due notice to each party and after a full hearing. An exception would be that the court may order exclusive possession upon good cause shown, by way of injunction. However, the former is much more common than the latter. An order for exclusive possession has no effect on the parties' homestead rights or marital property rights. The order simply places one spouse in the marital residence and temporarily bars the other spouse from being in the property.
The requirements to have such an order entered are stringent. The petitioner must show or demonstrate that the physical or mental well being of either the movant or the children is in jeopardy. A simple threshold would be in the case of physical violence. In re the Marriage of Hofstetter, husband's admission that he had beaten his wife was sufficient to justify the award of exclusive possession to his wife.
In other cases, the parties are simply living as roommates within the same marital residence. In those instances, the court will not order either party to leave the marital residence. As long as the parties refrain from any type of altercation, each has the right to remain in the premises. In re the Marriage of Lombaer, wife's hospitalization for mental problems and failure to take prescribed medication were insufficient evidence to establish that the mental or physical well being of the parties or the children would be jeopardized by wife's presence in the home. Thus, you can begin to understand the court's dilemma. Has the petitioner shown the need for exclusive possession of the marital residence? The court must balance the request of the petitioner against the hardship that will be put on the party being removed.
In many cases, both parties seek to remain in the marital residence for economic reasons. Often times, it is not until the divorce is final that the parties break free. There may be significant equity in the property that cannot be divided until the property is sold. It is often in both parties' interest to remain in the martial residence until that equity can be realized. In conclusion, the path to obtaining exclusive possession of the marital home is often difficult.
However, under the appropriate circumstances and with the assistance of a skilled attorney, a party can be granted exclusive possession of the marital residence.
David M. Siegel is an attorney practicing divorce and family law. Additional information is available at http://www.divorce-lawyers-newyork.com .
