Can one spouse make the other spouse leave the house?

Posted by Daniel A. Testa III | Jan 21, 2019 | 0 Comments

Divorce, especially a contested divorce, can be extremely stressful for both spouses. When a husband and wife continue to live in the marital residence while the divorce is pending that stress is compounded. A question that I am often asked is whether a spouse can be forced from the marital residence before the divorce has been finalized. 

When property is held jointly (both spouses are on the title to the property) the court does have the discretion to award one spouse exclusive occupancy of the marital property regardless if both parties hold title. An application for pendente lite exclusive occupancy needs to be made to the court. There are two general circumstances where the court may grant such a motion:

  1. Upon a showing that the spouse established an alternative residence, the relationship between the parties was acrimonious, and there is potential for turmoil if the spouse returns to the marital home; or
  2. Upon a showing that exclusive occupancy is necessary to protect the safety of persons or property.

A recent case in which temporary exclusive occupancy of the marital residence was held warranted is Amato v. Amato, 133 A.D.3d 695, 21 N.Y.S.3d 104 (2d Dep't 2015). In this case, the trial court found, after a hearing, that the plaintiff had committed a family offense (harassment in the first degree) and issued an order of protection and granted temporary exclusive occupancy. This determination was affirmed by the Appellate Division in which it held that the granting of relief was warranted in that the plaintiff had voluntarily established an alternative residence for himself, the relationship between the parties was acrimonious, and there was potential for turmoil if plaintiff returned to the marital home.

But, in Dachille v Dachille, 43 Misc.3d 241, 983 N.Y.S.2d 193 (Sup. Ct. Monroe County 2014), the court held that the wife was not entitled to an order of temporary exclusive occupancy of the marital residence, regardless of the fact that the husband  vacated the marital residence voluntarily and had no intention of returning to it. The court ruled that an award of temporary exclusive occupancy must be based on incidents that exceed petty harassment and, here, the wife had failed to show that the husband was a danger to her.

In summary, it is possible for one spouse to be awarded exclusive occupancy of the marital residence while the divorce is pending, but in order to be awarded such relief there must be a showing that the relationship is acrimonious and there was potential for turmoil (particularly violence). As seen in the Dachille case petty harassment did not constitute danger to the other spouse. One spouse can not force the other spouse to leave the marital property without showing that they are potentially in danger. 

Keep in mind that New York is an equitable distribution state, the marital property will be divided at the conclusion of the divorce whether by an order to sell the property or an order granting one party exclusive occupancy after the divorce. Pendete lite relief for exclusive occupancy only applies to the period of time when the divorce is pending. 

 Every divorce has unique circumstances, contact us today for a free initial case evaluation. 

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly. 

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About the Author

Daniel A. Testa III

Daniel graduated from Union Springs High School in 1992. He graduated from the University at Albany in 1998 with a B.A. in public policy and a minor in public administration; he received his Juris Doctor from the University of Buffalo Schoo...


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As an Auburn, NY native, and an active member in the community, Testa Law Firm practitioner Daniel A. Testa III believes that it should be a priority to make the community that we live and work in better. From being a member on the Union Springs school board to sponsoring a travel baseball team, he exemplifies a genuine love for our community that extends outside of his excellent representation.

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