Exclusive Use and Occupancy

As we are all hoping the worst of the pandemic is behind us, many couples that were forced to remain together during quarantine are now finally getting the freedom of physical separation. As marriage ends, the couple must then decide which, if either, spouse stays and which spouse leaves the family home. Usually, this can be done amicably, but in some cases, one spouse must take further action to ensure the other leaves the home immediately. In such cases, either spouse has the option to file a written application for “exclusive use and occupancy” of the family home.

“Exclusive use and occupancy” allows the court to order the removal of your spouse from the home and you, or you and your children, get the exclusive right to live there. This option is only available through the Court as it applies to your action of divorce or separation, and certain criteria must be met before the order will be made.

California is a community property state, meaning that any property acquired during the marriage belongs equally to both parties. For a court to consider exclusive use and occupancy of one spouse, or homeowner, over the other, the judge will consider whether there is a valid reason for a spouse to be removed from the home. These considerations include whether there is a history of abuse, either physical or emotional, or whether the presence of the other spouse living in the home contributes to an environment of domestic strife rising to the level of domestic abuse. Aside from being stressful to the separating couple, an acrimonious environment is in no way healthy for anyone you love in the home, particularly children.

The granting of exclusive use and occupancy is not guaranteed and must be substantiated by sufficient evidence regarding past abuse or a toxic environment. Without proof, the courts are reluctant to remove a spouse from the property through a court order. When kids are involved, the consequences of the removal of a parent must be weighed against keeping one in the house that is made unstable by their presence. Sometimes, judges delay a decision long enough for the divorce to be finalized and the property divided.

It’s important to remember that this is a temporary solution that relates to residency leading up to and possibly after divorce. During divorce proceedings, possession of the home can still be awarded to the spouse that was ordered to leave in the exclusive use and occupancy decision made by the court, or the house can be sold to provide the division of assets of the community property as part of the divorce agreement.