Courts are empowered 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 would result from the return may lead the Court to grant a petition for exclusive use. The question is how the Court defines the key terms of “necessary and safety?” This standard will be determined on its own set of facts and circumstances for each individual case.
What type of evidence would be persuasive to Court? The following is a sample of the list that 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) corroboration by a third-party regarding harassment. When both spouses remain in the same household, it is difficult to show that exclusive possession should be granted to one spouse without at least a showing one of the above 4 factors. Courts have recently been shown to grant exclusive use and occupancy upon the showing of mental or emotional harm, especially when it comes to children. If the abuse is mental or emotional, you should file for a Non Harass Order with Family Court.
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 need for exclusive use and occupancy pending your divorce. The goal is to gather enough evidence to help substantiate your need for exclusive use and occupancy in order to have this request granted by the Court.