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Courts are empowered in a matrimonial action to award temporary exclusive use and occupancy 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 demonstrate that it is necessary to protect the safety of persons or property. If one spouse has voluntarily established an alternative residence, and then desires to return to the home the existence of an acrimonious relationship and the potential turmoil which might result from the return may lead the Court to grant a petition for exclusive use. The question, however, is how the Court defines the key terms of “necessary and safety?” The Courts have not provided a lot of guidance, however, the standard for granting exclusive possession is not so inflexible as to exclude the consideration of different circumstances warranting the granting of this relief.

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 the safety of a spouse, the mental wellbeing of a spouse can be as significant as the physical wellbeing. 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 as he or she is not behaving as the moving spouse alleges.

In order to verify your claim for exclusive use and occupancy of the home, start keeping a journal. This will help you 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 Family Court. The goal is to amass evidence to help substantiate your need for exclusive use and occupancy.

Your attorney will be able to advise you whether there is a legitimate claim to the exclusive possession of the marital residence and whether a pendite lite motion is something you should file.

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