18 Aug Getting the House All to Yourself — Exclusive Use and Possession

Getting the House All to Yourself:

Exclusive Use and Possession of the Marital Home

Exclusive use and possession of the marital home means that one spouse gets to live in the marital home and the other spouse cannot live there, even though they both technically own it. Exclusive use and possession can arise in two different contexts. The more common way you see it is on a temporary basis while the case is still pending. The less common way is on a more long-term basis that continues on after the divorce is finalized. We will discuss both in this article.

Temporary Exclusive Use and Possession is a court ruling that requires one spouse to move out of the house while the case is pending. Sometimes, the married couple simply cannot live peacefully under one roof while the case is ongoing. Even in the absence of any violence or threats of violence, some judges routinely grant exclusive use and possession to one of the spouses, when asked, on the theory that it is always better to have divorcing couples separated. Of course, many times one of the spouses will voluntarily leave the marital home without being ordered to do so by the judge. Many couples physically separate long before the divorce case is even filed.

To obtain temporary exclusive use and possession, the spouse who is seeking the house must ask for it. This is done in either the initial divorce paperwork or in a separate motion. The parties will be required to go to a mediation conference before they can get a court date on the issue of temporary exclusive use and possession. Only if the mediation is unsuccessful will the judge allow a hearing to be set on the request for exclusive use and possession of the marital home.
The judge will make a ruling on temporary exclusive use and possession after holding an evidentiary hearing. These hearings are a big deal. Your attorney may first conduct discovery, which could include taking depositions, asking your ex to answer written questions (called Interrogatories), and asking your ex to turn over copies of certain relevant documents (called a Request for Production). Your ex’s attorney could conduct the same discovery. Both you and your ex will testify under oath at the hearing. Other witnesses may be called by either side as circumstances warrant. Documents will be introduced into evidence. The hearing is conducted with all of the formality of a trial. There are usually opening statements, direct and cross examination of witnesses, the introduction of evidence, and closing arguments. Then, at the end of the hearing, the judge will usually make a verbal ruling that will later be put in writing. Sometimes the judge must deliberate, or think about, the decision before making a ruling. This is called “taking it under advisement.” Most of the time, you will have a ruling made at the conclusion of the evidentiary hearing. If one spouse is ordered to move out, they will be given a specified period of time to do so by the judge. A ruling can also be made as to who is to pay for the house, including mortgage payments, maintenance, repairs, and upkeep. Sometimes, and depending on the exact circumstances of the case, the spouse who is ordered to move out may also be ordered to pay all or some of the monthly expenses related to the house.

Temporary exclusive use and possession usually continues from the date of the evidentiary hearing until further order of the court. The issue is normally raised anew at the trial. The judge can then suspend the temporary exclusive use and possession because the house must be sold, or the judge can simply discontinue it, or the judge can continue it for a longer period of time. In most cases, a final ruling is made at trial that will affect a permanent disposition of the house. Usually it is ordered to be sold and the proceeds (or loss) split between the parties.

Exclusive use and possession can also be long term. Long term rulings are almost always made during the trial (rather than at an earlier evidentiary hearing). The trial is the last official event of the divorce (unless an appeal or modification proceeding takes place). This long term exclusive use and possession is fairly rare compared to temporary exclusive use and possession. Examples of when it is granted would be because there are minor children living in the house and it is in their best interests to stay in that home and in that school district. Another example would be if one spouse is blind and already knows their way around the house, and it would be extremely burdensome for them to have to move. Again, this is a fairly rare occurrence.

If you or your spouse are seeking exclusive use and possession of the marital home, please contact our office to see how we can assist you. An experienced Board Certified expert divorce attorney like Mr. Radeline can help you achieve your goals in the case.