Rights on Temporary Possession of a Marital Home

by Beverly Bird
Possession of the marital home can be decided by the parties or the court.

Possession of the marital home can be decided by the parties or the court.

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When a couple marries and purchases a home together, then one files for divorce, this does not automatically grant possession of the home to the spouse who filed. If this were the case, the last spouse to get to the courthouse would be unfairly prejudiced. Both own the home and both have rights to it. A court might eventually order one spouse to leave but this almost always occurs due to bad behavior, not the filing of a divorce petition.

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Domestic Violence Restraining Orders

Both spouses have the right to live without fear of endangerment or physical harm at the hands of the other. When domestic violence is an issue in a marriage, the injured spouse can ask the court for a domestic violence restraining order. This invariably results in the offending spouse having to leave the home, at least temporarily. However, in most states, the process of receiving a restraining order is twofold. Courts will issue a temporary order first, which stays in place until a judge can decide on the allegations of abuse. If you fail to prove your allegations, your temporary order is rescinded and your spouse can return to the home.

Motions for Temporary Possession

When actual physical violence isn’t an issue, courts will still sometimes award possession of the marital home to one spouse while the divorce process moves along. Either spouse has the right to petition the court for temporary possession of the home if living together becomes unbearable, especially if the strife affects the children. Most couples involved in a divorce will argue, especially when they’re still living under the same roof. However, if fighting reaches a constant, cruel level, a judge might order one spouse out of the home and give temporary residence to the other. If one spouse is drinking heavily or using drugs, then he acts out under the influence on a frequent basis, a judge might order him to leave. If both spouses are guilty of lashing out, the primary caregiver of the children might be entitled to stay in the marital home so the children will not have to leave as well. Some states are more willing to award this kind of relief than others.

Other Circumstances

If your spouse has already moved out and you simply want to prevent her from entering your marital home at will and invading your privacy, you have the right to petition the court for exclusive possession. This is especially true if you don’t have free access to her new home. If she has a right to privacy, so do you. Most courts will allow you to change the locks under these circumstances. However, if you do it without court approval, and she forces her way in, she hasn't broken any law.

Impact on Divorce

An award of temporary possession of the marital home while your divorce is pending does not mean you will automatically receive the house in the divorce. Even if you do, your spouse will usually receive other assets of equal value. However, such orders can set a precedent for custody issues. Courts are generally unwilling to uproot children from the homes in which they’re accustomed to living. If one parent is forced to leave while the other stays behind in the marital home with the children, it might create a custody situation that a judge is reluctant to change.