Exclusive Occupancy in a New York Divorce
Suffolk Divorce Lawyer and Exclusive Occupancy
How Exclusive Occupancy is Determined in a New York Divorce
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.
Services Offered
- Pendente Lite Exclusive Occupancy. If the circumstances warrant, we will file the appropriate pendente lite motion to request the court grant you temporary exclusive occupancy while the divorce is ongoing.
- Final Exclusive Occupancy. We will assist you in making the appropriate request at trial to be awarded exclusive occupancy following the judgment of divorce
Why Choose The Law Office of J. Douglas Barics
At the Law Office of J. Douglas Barics, we have the experience in seeking temporary and final exclusive occupancy as well as arguing these issues in an appeal. We know the potential pitfalls to avoid at all phases, which helps bring stability to your life following your divorce.
Do you need representation in obtaining exclusive occupancy in a divorce action?
Contact us online or at (631) 864-2600.
What You Need to Know About Exclusive Occupancy
What is exclusive occupancy?
Exclusive occupancy is a court order that allows one spouse in a divorce to occupy the marital home even though it remains titled to the other or both parties.
When can the court award exclusive occupancy?
- Pendente Lite Exclusive Occupancy. The court can award exclusive occupancy either on a temporary basis while the divorce is pending as part of a pendente lite motion. This right terminates when the divorce judgment is issued.
- Exclusive Occupancy as Part of the Divorce Judgment. The court can award exclusive occupancy of the marital home from the date of the divorce judgment forward, usually ending when the children turn 18 years old. The authority is part of equitable distribution or under DRL 234.
How is pendente lite exclusive occupancy determined?
Pendente lite exclusive occupancy can be granted if one one or more of the following being show,
- Domestic violence
- Strife in the household
- Damage being done to the home
- Whether one spouse has voluntarily left the premises
Final exclusive occupancy is based on a wider variety of factors, including the need of the custodial parent to live in the marital residence.
How is pendente lite exclusive occupancy requested?
Temporary exclusive occupancy is obtained by filing a motion requesting it, and the court granting the request. It is not automatic. A hearing can be directed but it is not always required.
How is final exclusive occupancy determined?
Final exclusive occupancy is based upon trial testimony and evidence. It is primarily based on the need of the custodial parent to occupy the marital home until the children reach eighteen years of age. The need of the non custodial parent for the proceeds of the sale of the marital home is also a factor considered.
Contact Our Divorce Attorney Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any exclusive occupancy issue, no matter how challenging. With over 25 years of matrimonial experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled divorce lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.