Battle on the Homefront: Pendente Lite Exclusive Occupancy

January 1, 2001
By Clifford Petroske

Fortunately or unfortunately, married couples often wait until they can no longer stand the sight of each other before calling it quits. But “quits” is just the beginning of their divorce, a process that can last from several months to the better part of a year or more, depending on the issues involved. Where the parties continue to reside with each other, this can be a very difficult period for everyone.

For many, getting exclusive occupancy of the marital residence during the pendency of a divorce action can be as important as the ultimate divorce itself. Yet the emotional need to be free of the company of one’s spouse is never enough. As with laws governing landlord-tenant relations, the courts do not lightly tread upon the right of a spouse to remain in his or her home even where, for example, that spouse continues an adulterous relationship, or the marital residence was owned by the other spouse prior to the marriage.

Where both parties remain in the home when the application for temporary exclusive occupancy is brought before the divorce court, the party seeking occupancy must show that the other party is a threat to the safety of person(s) or property. More is involved than merely making a generalized statement — detailed allegations supported by third party affidavits, police reports and/or hospital records may be needed to convince a judge that the application is not a camouflaged effort to “get the house.” Even then, if the other party contradicts the allegations of the application with his or her own sworn affidavit, the court will likely order that a hearing be held to resolve the conflicting stories. Occasionally, the evidence of the threat to safety is sufficiently persuasive that a court will dispense with the requirement of a hearing, and grant an order of exclusive occupancy based only upon a review of the papers submitted.

Avoiding a hearing can be crucial, since it is typically 30 to 60 days before a decision on the application is reached by the supreme court. If that decision is a decision that a hearing is necessary, it is often another 30 to 60 days before the hearing is held. Of course, once a hearing is held, the court will very often reserve decision, adding another 30 to 60 days to the timeline. Adding it all up, it may make little sense to expend valuable resources on such a waiting game, when the whole process of getting divorced might be over before the “temporary” occupancy is granted.

The key to success is in the evidence. The more violent the behavior, the more likely there will be sufficiently convincing proof (i.e., hospital records, police reports and graphic photographs, to name a few) to avoid a hearing. Ironically, convincing proof that one’s spouse is a threat to one’s safety usually involves violent conduct that is far more readily handled in the family court. Bear in mind that a divorce action can only be brought before the state supreme court in New York State. The family court is a court of limited jurisdiction that can make orders concerning support, custody, and visitation, but it has no power to divide property or allocate debt, nor can it dissolve a marriage. In a proper case, a family court judge can also direct a violent spouse to “stay away” from the other spouse and his/her home and place of business. Since this relief can be granted in a short span of time, with a temporary (pre-hearing) order being issued the first day the petition is presented to the court and a hearing often being held within 10 to 30 days from that date, the family court is an important ally to the supreme court which may be simultaneously hosting the parties’ divorce action, but which may be too bogged down with motion and trial calendars to respond to an emergency quickly.

All of which is to say, that in a case where the parties continue to reside together, the Supreme Court (i.e, divorce court) can only be depended upon to grant temporary exclusive occupancy if the threat is one which the family court can handle faster. In short, although the Supreme Court may have statutory power to protect property from loss with a restraining order and can, in a myriad of ways, direct who will have possession of all kinds of property during the pendency of a divorce, the court cannot be depended upon to make a timely (and meaningful) grant of exclusive occupancy of the marital residence during the pendency of a divorce action. Unless the client finds him- or herself unfortunate enough to be the victim of domestic violence, time and resources are better spent on litigating and/or settling the main issues in the case — and staying out of each other’s way at home.