In many divorce cases, one party voluntarily moves out of the marital home, leaving the other party with exclusive use and occupancy of the premises. The much more likely scenario, however, is that both parties refuse to voluntarily vacate the marital home, often due to their desire to remain with the children and/or a lack of financial resources to maintain two residences. In such situations, often one party will file a Motion for Exclusive Possession asking the court to order the other party to vacate the premises.
As top divorce attorneys in Greenwich, Westport, Stamford, Darien, or New Canaan will tell you, the party moving for exclusive possession is required to indicate the grounds upon which he or she is seeking such a remedy. While no specific grounds have been established for granting exclusive possession of the marital home, there are some factors that the courts have considered more than others.
One factor that the courts have considered when deciding on a motion for exclusive possession is the nature of the relationship between the parties. For example, the mere fact that the parties dislike each other is typically not sufficient to justify exclusive possession of the marital home. However, the courts may be inclined to order exclusive possession of the marital home where the conditions indicate the existence of physical or psychological abuse between the parties, particularly in the presence of minor children.
Another factor that the courts have considered when deciding on an exclusive possession motion is the financial resources of the parties. For example, in a situation where the parties cannot afford to maintain two residences, unless one of the parties can secure a low-cost residence or move in with family free of cost, the courts may be less inclined to order exclusive possession of the marital home to either party, absent the presence of some genuine danger.
Finally, when deciding on a motion for exclusive possession, the courts have considered one party’s need to stay in the marital home over the other party. For example, if one of the parties operates his or her business out of the marital home, the court may be less inclined to exclude him or her from the house.
As top divorce attorneys in Greenwich, Westport, Stamford, Darien, or New Canaan know, there are many alternative arrangements to exclusive possession that can be agreed to outside of court, including excluding one or both of the parties from the home or portions of the home on certain days of the week or at certain times of the day. For example, some divorcing couples opt for a “bird nesting” arrangement whereby the children stay in the marital home and the parents rotate in and out-one party leaves the premises when it is the other party’s turn to reside there and vice versa. The attorneys at Broder & Orland, LLC are experienced in securing exclusive possession for our clients, defending against such claims, and in the alternative, helping to devise a plan that will meet our clients’ specific needs. More on Property Distribution