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  • Writer's pictureJames Chau

Exclusive Use and Occupancy of a Residence

When a couple makes the difficult decision to end their marriage, there are some questions and issues that need to be addressed right away. In most cases, a couple can decide if it necessary for one person to leave and find new living arrangements, and if so, who will be the one to move out. In some cases, the issue of living arrangements can be difficult, especially when there is a history of abuse and violence. When the issue of who will stay in the family home and who will leave becomes contentious, it may fall to the courts to make the decision. This can be done when either spouse files a written application for “exclusive use and occupancy” of the family home.

“Exclusive use and occupancy” can be requested in a number of ways. Essentially it allows the court to order the removal of your spouse from the home and you, or you and your children, get the exclusive right to live there. If there are emergency domestic violence concerns and under good cause, the court can issue an immediate “kick out” order under Family Code §6320 and §6342 to determine temporary exclusive use of a real property. If there are no domestic violence concerns, there can still be a request made under the family code for exclusive use of the residence under “physical or mental harm” that may arise to the requesting party under Family Code §6321.

It is never a good idea to live together when parties are undergoing a divorce. The probability of an explosive and dangerous situation is increased due to the strain of the divorce. The court recognizes that and allows for parties to seek relief in court for such a situation.

California is a community property state, meaning that any property acquired during the marriage belongs equally to both parties. Removal through court order does not mean the spouse ordered to leave is denied the possibility of obtaining the house in the divorce or receiving half of the value of the house when the divorce is finalized. During divorce proceedings, possession of the home can still be awarded to the spouse that was ordered to leave in the exclusive use and occupancy decision, or the house can be sold with the proceeds of the sale being split between the spouses as a part of the division of assets.

For a court to consider exclusive use and occupancy of one spouse, or homeowner, over the other, the judge will consider whether there is a valid reason for a spouse to be removed from the home. These considerations include whether there is a history of abuse, either physical or emotional, or whether the presence of the other spouse living in the home contributes to an environment of domestic strife rising to the level of domestic abuse. Aside from being stressful to the separating couple, an acrimonious environment can be particularly stressful and troubling for the children who live in the house.

Granting exclusive use and occupancy is not guaranteed and must be substantiated by sufficient evidence. As with all aspects of a divorce that involves children, the courts are going to lean toward rulings that are in the best interests of the children.

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