What would be considered when deciding who gets to stay in the home during the divorce proceedings, otherwise known as temporary exclusive possession of the marital residence?
It’s my understanding that one spouse can’t force the other spouse from the residence unless it can be shown that occupancy by one would jeopardize the physical or mental well being of the other spouse or children.
Is that true?
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Pennsylvania divorce laws where I am licensed to practice.
A spouse can be granted exclusive possession of the marital residence for a multitude of reasons.
Generally, the court will take into consideration how the parties to the divorce are co-existing in the marital residence together. If the situation in the home is volatile and is causing irreparable harm to the parties and/or children (if there are children residing in the residence), the court will take this into consideration.
Judges will also take into consideration when dealing with a petition for exclusive possession whether the marital residence is a spouse’s separate pre-martial asset, whether the spouse being asked to leave the residence has the financial ability to live somewhere else, whether the spouse being asked to leave the residence has a reasonable alternative for living arrangements, etc.
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The main threshold though for the courts when determining the validity of a petition for exclusive possession is to determine whether the home life has become hostile, intolerable and/or potentially dangerous to the inhabitants to the residence.
If a situation has become increasingly hostile and/or violent, it is likely that one spouse will be granted exclusive possession. However, as I mentioned, the spouse being asked to vacate the residence must be able to find and financially support alternative living arrangements.
If this is not possible, sometimes the court will actually draft an order that allows one spouse to remain in one section of the house (i.e., the second floor) and the other spouse to remain in another section of the house (i.e., the basement if it is possible to live in) with a schedule of who can be in the common areas (kitchen, living room, etc.) of the residence at a given time.
This approach is generally not taken as it can get very complicated with enforcement, but it is an option.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with divorce lawyers for men in your jurisdiction.