Exclusive Occupancy

By J. Douglas Barics
Long Island Divorce Attorney

Exclusive occupancy is the right to possess the marital home by a spouse who does not own it outright. Both marital property and separate property may be subject to an order of exclusive occupancy in a final judgment of divorce. Often times there are not sufficient assets to offset an award of the marital home to one spouse, and the spouse seeking use of the home lacks sufficient income to buy out the other spouse's share.

Many times a custodial parent wishes to continue to reside in the marital home to allow the children to continue living in the residence they consider home. An award of exclusive occupancy is designed for these situations.

Exclusive occupancy is not automatic. It is awarded or denied based on a number of factors including:

whether there are children or not
the need of the custodial parent to continue to live in the marital home
whether the home is marital or separate property
whether there are sufficient assets to offset the non occupying spouse's interest in part or in whole
the non occupying spouse being deprived of his or her interest in the home during the time of exclusive occupancy.

Exclusive occupancy is authorized under DRL 236 B (5)(f), as part of an award of equitable distribution. While equitable distribution cannot be awarded pendente lite, DRL 234 does authorize the court to award exclusive occupancy independent of the judgment.

Exclusive occupancy is an important element in any divorce proceeding, and whether or not exclusive occupancy is appropriate should be determined as part of a big picture strategy for any divorce.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any case involving exclusive occupancy. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.

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For a free phone case consultation or to schedule an office meeting, call 631-864-2600.

Overview

Matrimonial actions are defined by statute; the most common being divorce, annulment, and a declaration of a void marriage. For every matrimonial action all ancillary relief is available.

Divorce

Divorce is the most common matrimonial action. Grounds are no longer the primary focus, the emphasis is resolving the financial matters and custody.

Annulments

An annulment is a matrimonial action seeking to declare a valid marriage void. All ancillary relief is available. All annulment grounds are fault based, and require a higher level of proof to establish.

Void Marriages

Void marriages are those which are void from inception. An action requesting a declaratory judgment is a matrimonial action and all ancillary relief is available.

Matrimonial Appeals

Matrimonial appeals requires a combination of matrimonial law and appellate law. A lack of understanding of either can prove fatal in an appeal.

Equitable Distribution

Equitable distribution authorizes the matrimonial court to award all marital property to either spouse, without regard to title.

Maintenance

Maintenance is the support payments from one spouse to another. Since 2016 the amount is determined by a formula.

Child Support

Parents have an obligation to support their children, and the parent with residential custody will be awarded child support. The amount of support is determined by a formula.

Custody

When parents cannot decide where their children shall live and how to make decisions involving them, the court will decide custody based on the bests interests of the child.

Counsel Fees

Awards of counsel fees to the non monied spouse is available in all matrimonial actions. Awards can be made during the case and at the conclusion.

Expert Fees

Awards of expert fees to the non monied spouse is available in all matrimonial actions.

Exclusive Occupancy

The court is authorized to award exclusive occupancy to one party, giving them exclusive use and possession of a home for a set period of time during or after a matrimonial action.

Pendente Lite Motions

Pendente lite motions used when a spouse in a matrimonial action needs needs immediate court assistance on something that cannot wait until trial or a final settlement.

Same Sex Divorce

Same sex divorces present unique issues such as when the couple got married before it was recognized by law, or when couples used work arounds for their marital property.

Modification of Child Support

Child support may be modified based on a change of income, a change of circumstances, or if three years have passed since the last modification. COLA adjustments to child support orders can also be obtained.

Modification of Maintenance

Maintenance is subject to modification or early termination but the circumstances when these can occur are less common than in the past.

High Net Worth Divorce

High net worth divorces often involve non typical financial holdings that require special care in determining their disposition.

Marital Agreements

Marital agreements are contractual agreements between future, existing, or prior spouses who decide to resolve their own issues instead of letting a court decide for them.

Complex Challenges

Complex challenges in matrimonial actions can range from complex financial issues, inter-state or international issues, or procedural issues which deprived one spouse from their day in court.