Seeking Exclusive Use and Possession of Marital Home

The entire process for a divorce can take anywhere from six months to several years. After filing for a divorce, a couple may struggle with what to do with the marital residence. If the parties do not wish to sell the house, but cannot agree on who will stay in the house, one party may want to seek exclusive use and possession over the home for themselves and their children. Until the parties can decide on who will keep the house at the end of divorce, this temporary order will allow one party to stay in the residence during the pendency of the divorce proceedings.

There are typically two avenues to approach exclusive use and possession of the marital home. One scenario is if there is domestic violence and is more short-term. Family Code section 6321 allows for a temporary removal of one party from the house, even if the remaining party is not on the title. There must be a showing that the party removed has “assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.” (Family Code section 6321(b)(2).)

Another scenario involves a more long-term removal. Under Family Code sections 3800 et.seq., a parent may seek permission to stay in the home if it’s shown to be in the best interest of the children to maintain the familiarity and schedules of the kids during the divorce. This would also prevent or delay the sale of the home by the other party during divorce.

Along with an order allowing one parent or party to stay in the house, the court may also require either party to continue to pay the mortgage and other expenses of the residence, to or for the remaining party maintain the property in a position to sell eventually the home, etc.

If you are contemplating separation or divorce and are concerned who will be able to stay in the martial residence, contact an attorney at Cage & Miles, LLP today to discuss your options in a free 30-minute consultation.