Which party lives in our jointly owned home after a divorce is filed?
Concern for a jointly owned home is very common within divorce cases. In the majority of divorces, parties are jointly living in a home that they jointly own at the time of service. This property, referred to as the “marital residence,” often becomes an asset subject to equitable division by the court at some later date. Again, although there are often variations with respect to which spouse is listed on the title and/or any note or mortgage associated with the property, the trial court is empowered to either force a sale of the property, or assign that property to one party or the other as part of the dissolution action, where appropriate.
Pursuant to the Automatic Orders, or restraining orders which go into effect at the outset of every divorce action in Connecticut, neither party may deny the other use of the parties’ primary residence without a court order. Nevertheless, due to the likelihood of conflict between the parties (and perhaps in the presence of minor children), the spouses have the option of filing and proceeding with a motion for exclusive possession of the marital home. This procedural mechanism allows one party – on a temporary basis only – to be heard as to why it would be “just and equitable” to grant only one party interim use of the marital home (to the exclusion of the other spouse) without making a determination as to which party will ultimately receive title to that property upon final judgment.
A myriad of factors may be considered by the court in awarding temporary (also referred to as “Pendente Lite,” Latin for “while the action is pending”) exclusive possession of the marital home, but perhaps the most significant factor is recent or present violence (or the threat thereof) in the marital home, especially if the same has resulted in police intervention or involvement by the Department of Children and Families. In circumstances of physical abuse of a spouse or a child, there are three options to be considered and employed, in tandem or individually, as circumstances allow:
A) criminal proceedings and a criminal protective order;
B) a civil application for relief from abuse; and
C) the temporary, exclusive possession of the marital home as discussed here.
Each of these options comes with its own benefits and procedural mechanisms; in the case of an emergency or serious, imminent danger to a person or child, law enforcement is the best option.
If you have any questions, contact Joseph Maya, Managing Partner at Maya Murphy, at (203) 221-3100 or directly via email at JMaya@Mayalaw.com for a complimentary consultation with an experienced Divorce Lawyer to discuss your case.