Exclusive Possession of the Marital Residence / by Cassandra Hearn

Once a couple has decided to divorce, it is quite common for the next immediate issue to be who stays in the marital residence. For many couples, the marital residence is the most valuable asset they own. Asking a court to force one spouse out of the residence is a big step, and requires the requesting spouse to prove specific elements to be successful. The first issue is whether a house is separate or community property. If the house is separate property, a court will generally be very reluctant to force the owning spouse to vacate the residence. If the house is marital property, generally, there is one reason to ask the court to force your spouse to leave the residence: domestic violence. 

 If there is domestic violence or the credible threat of violence, either spouse may apply to the court for a restraining order. California Family Code §6321 provides that a judge may issue an emergency order excluding the offending spouse from a marital residence. A judge may order this regardless of which spouse actually holds the title to the residence. A requesting spouse must prove three elements. First, that he or she has some right to the residence (such as already residing there). Second, that the offending spouse committed violence or threatened to do so. Third, that failure to grant the order would result in harm to the requesting spouse or the parties’ children. If the requesting spouse can show these elements, then the court may order the offending spouse to vacate the residence and stay away.

 At the end of a divorce, when it is time to divide the marital property, the court can order that one spouse can remain in the marital home for an extended time if that spouse can show such an order is in the best interest of the children. California Family Code §3800 states that a custodial parent may ask the court to grant temporary exclusive possession of a marital home in order to “minimize the adverse impact” of the divorce on the children by seeking a deferred entry of sale of the home. Before granting such a request, a court will look to see if the spouse asking to stay in the home has the ability to continue financially caring for the home, including mortgage payments and taxes, including the parent’s income and any support payments he or she may be receiving. If it is economically feasible for the custodial parent to keep up the house, the court may order deferring the sale of the home until the child is older, sometimes even until the child has reached the age of majority.

  We have experience in dealing with the marital residence and dealing with issues of exclusive possession. Contact us today at 619-800-0384 to discuss your home and your options