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.