How to Obtain Exclusive Occupancy of the Marital Residence

During a divorce proceeding, it is not uncommon for one party to want exclusive occupancy of the marital residence, meaning that the other party would be required to vacate the residence and would not be permitted to enter without the remaining spouse’s permission. Unless there is a court order granting one party exclusive occupancy, both spouses have the right to remain in the marital residence regardless of how the house is titled.

Often one spouse may voluntarily vacate the residence. Such an action does not cause the vacating spouse to lose any property rights he or she has in the house. However, if the parties have minor children, vacating the residence could have an impact on the allocation of parental rights and responsibilities. Therefore, a party should consult with an attorney about what impact this may have on the parenting issues prior to taking any action.

The process of obtaining exclusive occupancy over the other party’s objection varies from county to county. In some counties, if one spouse has voluntarily vacated the marital residence for more than thirty (30) days, the remaining party may obtain an order for exclusive occupancy on an ex parte basis, i.e. without a court hearing. However, in other counties, in order to obtain an order for exclusive occupancy, you must have a hearing before a judge or magistrate. At that hearing, the requesting spouse must establish that the other party had done one of the following: (1) attempted to cause or recklessly caused bodily injury by acts of physical violence, (2) placed a party, by threat of force, in fear of imminent serious physical harm, (3) committed any act with respect to a child that would result in the child being an abused child as defined by Ohio law, (4)engaged in conduct which caused or is likely to create an environment which significantly endangers the spouse, and/or minor children’s physical health or mental or moral or emotional development, or (5) engaged in conduct abusive to the spouse and/or minor children whether by physical or verbal acts.

An order requiring a person to leave a marital residence is normally issued if a person has been criminally charged with domestic violence. This is done through a Temporary Restraining Order. Sole possession of a home may also be ordered if a Civil Protection Order is issued by a Domestic Relations Court as a result of allegations of domestic violence.

Although it is recognized that a couple continuing to live together while going through a divorce can be very difficult for both the parties and the children, courts are reluctant to make decisions about parties’ rights to property until all of the facts are presented in a comprehensive trial. Such a trial commonly occurs months after a divorce is filed. As such, it is only in rather extreme cases where a court will order one party out of the marital home, at the beginning of the divorce process.