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Domestic Relations Law § 234 vests judges with broad discretion to grant one spouse “exclusive use and occupancy” of property in a divorce action. This power permits a court to direct that one spouse may use the former marital residence to the exclusion of the other spouse. In particular, in order to maintain consistency for children, there is a strong preference that the custodial parent continue to occupy the marital residence at the conclusion of a case.

However, the court’s ability to grant exclusive use and occupancy during the pendency of a case is more circumscribed. Courts may grant exclusive use of a marital home during the pendency of a case (referred to as pendente lite) when: (1) there is a need to protect the safety of persons or property; or (2) when the party not seeking exclusive use has voluntarily established an alternative residence and that spouse’s return to the marital home would cause domestic strife. An award of exclusive use premised upon the need to protect persons or property must generally be supported by evidence of police intervention, outstanding orders of protection, or corroborated by a third-party affidavit. Given this high burden, most requests for pendente lite exclusive use are grounded on the non-moving spouse voluntarily vacating the former marital residence.

In light of these complexities, it is essential that you retain a skilled counsel to provide informed advice about if and when you should move out of the marital residence, or whether you should seek exclusive use and occupancy. The Law Offices of Andrew T. Coyle is equipped to provide this guidance from the very beginning of any representation.

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