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Divorce: Who stays in the home?

Exclusive Possession of the Marital Residence and Divorce in PA: What to do when your spouse won't leave

Bethenny Frankel's divorce has been gracing the front pages of the tabloids since she filed last year. Bethenny and her husband, Jason Hoppy, with whom she shares a three-year-old daughter, have continued to reside together in their Tribeca loft since new of their split was reported. Bethenny's decision to let her husband stay in the residence was apparently the result of her wanting him to remain close to their young daughter. However, now, one year later, Bethenny has been in court trying to get Hoppy excluded from the residence.

In Pennsylvania, even after a divorce action is commenced, both spouses have the right to equal access to the marital residence. This means that both spouses have the right to continue to reside in the residence if they so choose. For some couples, this is not an issue; many couples are able to agree that one of them will leave and the other will stay. If the couples rent, it may be easier for them to both agree to leave the residence upon separation. Some couples are even able to reside together for the entire duration of their divorce action. However, there are many situations where the continuation of co-habitation is not realistically feasible and both parties refuse to leave. If one spouse refuses to leave, the other spouse may file a motion asking for exclusive possession of the marital residence.

A judge will consider many factors when deciding whether to award exclusive possession to the filing party. Harassment by the non-filing spouse towards the spouse seeking exclusive possession will be considered, as such behavior can show that the parties' current situation is not conducive to a harmonious home life. The court will also consider the assets and incomes of the parties; the court will consider which spouse has the ability to locate to a new residence. The court will look at whether or not the parties have children and which spouse cares for the children. An award of exclusive possession is not limited to situations where the parties have children, however.

If one spouse is granted exclusive possession, it gives them the right to exercise physical control over the home while the divorce is pending without the interference of the other spouse. The other spouse is not permitted to enter the home without the express permission of the spouse who was granted exclusive possession or an order of court. An award of exclusive possession does not entitle the filing party to sell or otherwise encumber the residence; the home is still considered to be a marital asset. Furthermore, a grant of exclusive possession to one spouse does not create a presumption that that spouse shall be awarded the residence in the final distribution of assets.

If you would like more information about exclusive possession and what your rights might be, contact the experienced attorneys at McMorrow Law LLC today at 724-940-0100.

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