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Seeking Exclusive Possession of the Marital Home

The entire process for a divorce can take anywhere from six months to several years. After filing for a divorce, a couple may struggle with what to do with the marital residence.

If the parties do not wish to sell the house, but cannot agree on who will stay in the house, one party may want to seek exclusive possession over the home for themselves and their children.

Until the parties can decide on who will keep the house at the end of divorce, this temporary order will allow one party to stay in the residence while the divorce case is pending.

Temporary exclusive possession in cases of domestic violence

There are typically two avenues to approach exclusive possession of the marital residence. One scenario is if there is domestic violence and is more short-term.

Family Code section 6321 allows for a temporary removal of one party from the marital property, even if the remaining party is not on the title. There must be a showing that the party removed has “assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party.” (Family Code section 6321(b)(2).)

Long-term removal from the marital residence

Another scenario involves a more long-term removal. Under Family Code sections 3800 et.seq., a parent may seek permission to stay in the home if it’s shown to be in the best interest of the children to maintain the familiarity and schedules of the kids during the divorce. This would also prevent or delay the sale of the home by the other party during divorce.

Along with an order to grant exclusive possession of the marital property to one parent or party, the court may also require either party to continue to pay the mortgage and other expenses of the residence. They could also require the remaining party to maintain the property until they are in a position to eventually sell the home.

If you are contemplating separation or divorce and are concerned who will be able to stay in the martial residence, contact an attorney at Cage & Miles, LLP today to discuss your options in a free 30-minute consultation.


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