Exclusive Occupancy of the Marital Home in New York Matrimonial Actions
By J. Douglas Barics
Revised August 2019
1. What is exclusive occupancy?
In a any matrimonial action, the court has the authority to award one spouse exclusive occupancy of the marital premises regardless of title. Thus a home titled in both spouses name may be awarded to one spouse for his or her sole use under exclusive occupancy. The authority to award exclusive occupancy is one option the court possesses, and is often used where there are insufficient assets or resources to award title of the home to the spouse receiving the right to live in it.
Exclusive occupancy will be used when the spouse being excluded still retains some sort of legal interest in the property. It is improper to award exclusive occupancy to the sole owner of real property, since the award will act as a restriction. See Bisca v. Bisca (2nd Dept 1985).
Exclusive occupancy is authorized under two sections of the Domestic Relations Law; both DRL 234, and 236B(5)(f) authorize exclusive occupancy.
2. Pendente Lite Exclusive Occupancy
Pendente lite exclusive occupancy has its authority rooted in DRL 234. This statute pre-dates the equitable distribution law and it allows the court to dispose of minor assets which do not have title. In addition, it allows the Court to award exclusive occupancy. Since an award under DRL is not dependent on a dissolution of the marriage and can be made anytime prior to, during or after a divorce, it is not considered equitable distribution.
In order to grant an award exclusive occupancy in advance of the final judgment, one of two circumstances must generally be met.
- Upon a showing that a spouse's presence has caused domestic strife and that spouse has established an alternative residence, potential for turmoil if return home, acrimonious relationship
- Upon a showing that exclusive occupancy is necessary to protect safety of persons or property
An application for pendente lite exclusive occupancy is made by a pre trial motion, and may be granted without a hearing if the court deems sufficient evidence is presented in the motion. Such evidence may include the following:
- The affidavit in support of the request contains allegations of violent threats
- The existence of evidence of prior police intervention
- The existence of an order of protection
- Uncontroverted medical evidence
- Corroborative third party affidavits
If the pendente lite motion contains sufficient allegations to warrant exclusive occupancy, but otherwise insufficient supporting evidence, a hearing may be granted.
3. Final order of Exclusive Occupancy
As part of a final judgment, the court may award exclusive occupancy to either spouse without regard to title under DRL 234, and 236B(5)(f). This relief may be granted even if a divorce is denied pursuant to DRL 234. In addition to the above, the court will consider whether or not there are children of the marriage and whether living in the marital home is in their best interest, the financial resources of both spouses, the overall financial circumstances of the parties, and whether or not it is feasible to award title of the marital residence to one party.
About J. Douglas Barics
J. Douglas Barics is a divorce lawyer located in Commack NY who regularly represents individuals in all divorce and family law matters.
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