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Divorce Lawyers New York - Marital Residence Orders

Marital residence orders granting exclusive possession to one spouse

If a verified complaint or petition seeking temporary eviction for the marital residence of another spouse is filed with the court, the court may, in certain cases, grant that party exclusive possession of the marital home. The court will do so in cases where the physical or mental well-being of either spouse or their children is jeopardized by occupancy by both spouses, and only upon due notice and a full hearing, unless waived by the court for good cause shown, can enter an order of an injunction, mandatory or restraining or granting exclusive possession of the marital residence to one spouse.

No order of exclusive possession of the marital residence shall affect in any way, an estate in homestead property of either party.

Examples:

In re Hofstetter, the court found sufficient evidence to determine that the wife should have exclusive possession of the marital home where the husband’s presence would jeopardize the wife’s physical and emotional well-being and the trial judge did not abuse his discretion by awarding the wife exclusive possession of the marital home.

In re Lima, the court found that it was clear from the evidence that there was no jeopardy to either the physical or mental well-being of the wife. That neither prior to dated ordered nor after word, was there any evidence of any future jeopardy to the physical or mental well being of the wife. Thus, no rational trier of fact, given the evidence, would have found that the wife should have had exclusive possession of the marital home.

In re Hofstetter, how the courts order of exclusive possession of the marital home to the wife pending outcome of the cause was irrelevant to the later disposition of the home as marital or not marital property.