United States: New York Focus – The Exclusive Use And Occupancy Of The Marital Residence, Pendente Lite

Last Updated: October 9 2015
Article by Robert A. Epstein

While our blog has focused exclusively on New Jersey family law since its inception almost 8 years ago (yes, it has been that long), we also focus our practice on New York family law.  We do not (yet) have a Fox New York-specific family law blog, so this blog will serve as a testing ground and forum, of sorts. Rather than start off with a light and feel-good topic (how many of those are there in family law anyway), this blog will delve right into a spouse's request to have exclusive possession and occupancy of the marital home during the divorce proceeding (pendente lite).

By contrast to family courts in New Jersey, family courts in New York, pursuant to existing statute and case law, are more willing to grant one party exclusive possession of a marital residence during the divorce proceeding in the absence of domestic violence.  Parties, perhaps as a result, also more frequently make such request for relief in New York matters as compared to litigants in New Jersey matters. For starters, New York Domestic Relations Law 234 – Title to or Occupancy and Possession of Property, provides the fundamental authority for this type of pendente lite request:

In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties.  Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment.

More simply, the statute provides that the family court judge can render a determination as to the possession of real property before final judgment, at the time of final judgment, after final judgment, or all of the above.  The request in each case will be analyzed based on the specific set of facts and circumstances at issue.  The nature of ownership of the real property in which sole occupancy is sought should have no bearing on the decision.

While such relief can be based on a need to protect the person seeking exclusive occupancy and/or the subject children, if any, it can also be based on a far more general standard that such occupancy is necessary to avoid marital/domestic strife.  The strife can be alleged to have an impact on the daily emotional well-being of the person(s) seeking relief.  The court will also consider alternative housing options for the moving party and non-moving party, as well as either party's willingness to voluntarily pursue such alternative housing options. For example, exclusive occupancy may be appropriate if a non-movant spouse has voluntarily established an alternative residence and his or her return to the marital residence would cause the above-referenced "marital or domestic strife."

Since the relief is requested in the midst of a divorce proceeding, there does have to be a greater basis for the request than simply unsubstantiated assertions of the parties' inability to get along, or one party acting unreasonably towards the other.  The more specific the assertions, the better the chance of the request being granted.

Generally, a plenary hearing (ideally to occur in short order) with testimony should be held to render a determination on a pendente lite request for exclusive occupancy, resolving at such time competing affidavits and allegations between the parties.

Requesting exclusive possession and occupancy of the marital home, pendente lite, is not something that should be taken lightly.  While it is often requested, whether because the relief is actually appropriate or simply as a strategic maneuver in a custody dispute or to color the court's view of the matter, it is something that should be carefully considered and discussed with legal counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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