A common question that arises when people come in for their initial consultation is: how they are going to survive the process!? Typically, a spouse walks in and has decided to get divorced. Their first concern is that they have not been working and are one hundred percent reliant on their spouse. As I’ve written in past blogs, the law is gender neutral when it comes to divorce. There are only two types of people in a divorce, the “monied” spouse and the “non monied” spouse. As you can guess, it’s the non monied spouse that walks in with the concern that they will not be able to survive if they file for divorce. That is when we explain the Pendente Lite motion. Pendente Lite is Latin for “pending the litigation”. It is a motion that you can make where you, as the non monied spouse, requests that the monied spouse pay for the following: (1) temporary maintenance; (2) temporary child support; (3) your counsel fees; and (4) exclusive use of the marital property. There are many other things that you can ask in the Pendente Lite motion. This blog will focus on the request for the exclusive use of the marital property.
Courts are statutorily empowered in a matrimonial action to award temporary exclusive possession of the marital premises to one of the parties. (Domestic Relations Law §234). Generally, exclusive occupancy of the marital residence should not be awarded to a party prior to trial without a hearing unless there is sufficient evidence to show an award is necessary to protect the safety of persons or property. If a spouse has voluntarily established an alternative residence, the existence of an acrimonious relationship between the parties and the potential turmoil which might result from a spouses return may lead to the Court to grant a petition for exclusive use of the marital residence. The question becomes how one defines the key terms of “necessary and safety?” The Courts have not given much guidance however, the standard for granting exclusive possession is not so inflexible as to exclude the consideration of different circumstances warranting judicial intervention.
What type of evidence would be persuasive to Court? The following is a non-exhaustive list which would carry considerable weight with the Court: (1) a police report showing complaints by one spouse about the other; (2) the existence of an order of protection/non harass order; (3) medical evidence of abuse; (4) corroborative third-party affidavits of harassment. Typically, a hearing is necessary when there exists contradictory affidavits. When both spouses remain in the same household, it is difficult to show that exclusive possession should be granted to one spouse. When addressing safety of a spouse, the mental wellbeing of a spouse can be as significant as the physical wellbeing of the moving spouse. Thus, what typically happens is that one spouse moves for exclusive possession of the marital residence and the other spouse argues that this remedy is unnecessary because he or she is not doing whatever the moving spouse is alleging.
Start keeping a journal. When going through a divorce, you will want to be able to communicate to your attorney and eventually the Courts of all the incidents you believe substantiate your claim to the marital residence pending the divorce. If you have been abused, file a police report. Seek medical treatment. If the abuse is mental, file for a Non Harass Order from the Family Court. The goal is to amass evidence which can be sued in the motion to help substantiate your need for judicial intervention.
If a Court does grant exclusive possession of the marital residence, a common argument made by the spouse who now must move out of the martial residence is that he or she may not be able to afford two households. The Courts uniformly hold the same way on this response: the appropriate remedy to resolve an apparent inequity with the Court’s pendente lite award is a speedy trial.
LEARNING POINT: Once you decided to file for divorce, immediately seek the guidance of an attorney. Your attorney will be able to advise whether you have a legitimate claim to the exclusive possession of the marital residence and whether the pendite lite motion is something you should file.