In the brilliant 1989 dark comedy “The War of the Roses,” a married couple, played by Michael Douglas and Kathleen Turner, are getting a divorce, and neither wants to leave their mansion of a home. They each try to get the other to leave so they can claim the house in the divorce. While the movie used the scenario for a string of increasingly dark and funny antics, the situation would be handled very differently in real life.
In today’s world, either spouse has the right to file a written application for “exclusive use and occupancy” of the family home. If approved, the court would issue an order granting the spouse their request requiring the other spouse to vacate the premises. The spouse ordered to leave would not be allowed to return to the home unless they are invited by the occupying spouse, through a formal agreement, or with a court order.
In most cases, the spouse ordered to vacate still has their name on the house’s title and retains their ownership. Therefore, the order does not end their claim to either the house or a portion of its value. Assuming the house is considered marital property, the home’s value is still considered during the division of assets.
“Exclusive use and occupancy” is not something that is requested or granted in every divorce. In most cases, one spouse will agree to move, or the divorcing couple may be able to live side by side in relative peace as they begin and go through the process of divorcing. Both spouses may decide to remain in the family home for several reasons, including being unable to afford the rent or mortgage on a second residence.
For a court to consider granting exclusive use and occupancy, the judge will consider if the application includes a valid reason for a spouse to be removed from the home. These considerations include whether there is a history or threat of physical or emotional abuse or if living in the same house would cause a considerable amount of domestic strife. Even if there is no evidence of abuse, domestic strife can cause high levels of stress or otherwise impact the spouse’s or children’s emotional well-being.
Granting an “exclusive use and occupancy” order is not guaranteed and can be denied by the court if there is insufficient evidence of any significant problems. While the courts are sensitive to potential abuse, with a lack of indication of such issues, the courts are hesitant to remove a property owner from that property through a court order. Other factors taken into account are how the removal of a parent will impact the children or if the order to vacate the premises will cause an undue financial hardship on the spouse or couple. A judge will also take into consideration if the spouse being ordered to vacate has a place to go, such as staying with a parent or with a boyfriend or girlfriend. If alternative living arrangements are available, a judge is more likely to grant the order.
There are also cases where a judge may delay the decision for 30 – 60 days to review the matter further. At that point, it may even be the case where there is a finalized divorce before a decision can be made on temporary occupancy.
The important thing to note about “exclusive use and occupancy” is that it is a temporary decision related to the living situation during the divorce and possibly for a certain amount of time after the divorce is finalized. The final decision of who will live in the house can still go to the spouse who was ordered to vacate the property, or the house may be sold to facilitate the division of assets as a part of the divorce agreement.
Going through a divorce is a stressful time. You need to have an advocate on your side to represent your best interests for the decisions related to the final divorce agreement and those temporary decisions that need to be made while you are going through the process. With over 30 years of family law experience, Anthony LoPresti is the advocate you want on your side.