Exclusive Occupancy

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.