By Hope Tuber
Courts are statutorily empowered in a matrimonial action to award temporary exclusive possession of the marital premises to one of the parties. Exclusive occupancy of the marital residence can be awarded to a party prior to trial without a hearing only if there is sufficient evidence to show an award is necessary to protect the safety of persons or property. If a spouse has voluntarily established an alternative residence, the existence of an acrimonious relationship between the parties and the potential turmoil which might result from a spouses return may lead to the Court to grant a petition for exclusive use of the marital residence. The question becomes how one defines the key terms of “necessary and safety?” The Courts have not given much guidance however, the standard for granting exclusive possession is not so inflexible as to exclude the consideration of different circumstances warranting judicial intervention.
What type of evidence would be persuasive to Court? The following is a non-exhaustive list which would carry considerable weight with the Court: (1) a police report showing complaints by one spouse about the other; (2) the existence of an order of protection/non harass order; (3) medical evidence of abuse; (4) corroborative third-party affidavits of harassment. Typically, a hearing is necessary when there exists contradictory affidavits. When both spouses remain in the same household, it is difficult to show that exclusive possession should be granted to one spouse. When addressing safety of a spouse, the mental wellbeing of a spouse can be as significant as the physical wellbeing of the moving spouse. Thus, what typically happens is that one spouse moves for exclusive possession of the marital residence and the other spouse argues that this remedy is unnecessary because he or she is not doing whatever the moving spouse is alleging.
Start keeping a journal. When going through a divorce, you will want to be able to communicate to your attorney and eventually the Courts of all the incidents you believe substantiate your claim to the marital residence pending the divorce. If you have been abused, file a police report. Seek medical treatment. If the abuse is mental, file for a Non Harass Order from the Family Court. The goal is to amass evidence to help substantiate your need for judicial intervention.
Once you decided to file for divorce, immediately seek the guidance of an attorney. Your attorney will be able to advise whether you have a legitimate claim to the exclusive possession of the marital residence and whether the pendite lite motion is something you should file.