When Your Home is No Longer a Home

There are so many reasons a client wants to remain in the family home after the divorce proceedings have been filed.  Often it is a custodial parent who wants to provide normalcy for their children.  Other times it is for financial or emotional reasons, or a combination of the three.  Whatever the reason, unless one party agrees to move out of the residence,  a court order will be required to exclude a party from living in the family residence.

Deciding who will remain in the residence at the beginning of a case is a problem nearly every family law litigant will face; requiring the assistance of the court in reaching that decision is far less common.  In most cases, one or both parties will decide to leave the family residence.  In these situations it is important to have a written agreement about who is leaving, who is staying, and how the expenses related to the residence are going to be paid.   These agreements are where most of the controversy lies, especially with regard to the payment of the expenses.  That is an issue that should be addressed in a separate blog.

In the rare instance that the parties cannot agree who will stay in the house and who will leave, a motion for exclusive use and possession of the residence is required.  The first hurdle a party seeking such an order must overcome is to prove they have a “colorable” right to possession of the residence.  In other words, you need to show you have a right to live at the residence.  That can be because you are on title to the home, you are a signer on the lease, or that you have lived in the residence for a period of time.  This is a fairly easy showing to make, but you will need to discuss the specific facts of your case with your attorney before you proceed.

Once you have made a showing that you have a right to live in the residence, you must provide the court with a reason why the other party should be excluded from the residence.  The showing you must make depends on whether there is a fully noticed hearing.  There are two ways a party to request an order for exclusive use of a residence.  The first is via an emergency hearing (called an Ex Parte hearing) and the other is via a Request for Order.  The only difference between the two hearings is the amount of notice the other party receives that the request is being made.  For an Ex Parte hearing, notice must be given 24 hours before the hearing.  For a Request for Order Notice must be provided at least 16 court days (business days) before the hearing.  Because of this difference, the evidence required to justify the court granting the requests is different.

Ex Parte Request to Exclude:

Request made via Ex Parte must provide sufficient facts to show the party being excluded from the residence has assaulted or threatened to assault the other party or any children living in the home.   In this context, actual physical domestic violence will need to be shown.  In addition to physical violence, a showing that physical or emotional harm will result if the other party is not removed from the residence must also be presented to the Court.  These rules are contained in Family Code Section 6321.

This type of request is usually accompanied by a Domestic Violence Temporary Restraining Order.  It is fair to assume if you have facts sufficient to support the issuing of a Domestic Violence Temporary Restraining Order then you have facts to support an order to exclude a party from the family residence.

Request for Order to Exclude:

If the request is made via a Request for Order, a lower showing is required.  In these circumstances, the party seeking an order for exclusive use of a residence must only show that “that physical or emotional harm would otherwise result to the [requesting] party, to a person under the care, custody, and control of the [requesting] party, or to a minor child of the parties or of the [requesting] party.” Family Code Section 6340.

Risk of physical harm is self-explanatory.  Emotional harm on the other hand is open to interpretation.  There is no strict definition of emotional harm so the interpretation of the facts of your case will be left to the Family Law Judge to decide.  Every judge is different so what one judge might find to be emotional harm another judge might find is normal stressors related to two people going through a divorce that are still living together.

That is why it is important to be prepared for any scenario.  As an example, in a case where emotional harm could be difficult to articulate, a skilled Family Law Practitioner can suggest a mental health professional to help explain to the judge how the situation is affecting a party’s emotional well-being or that of the children. There are potential pitfalls involved in doing this, so you need to weigh your options before making any decision.

Addressing a request for exclusive use and possession of a family residence can be a complex undertaking.  That is why it is important that you discuss your case with an experienced Family Law Attorney who can analyze your situation and recommend a course of action.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding exclusive use and possession of a family residence.  Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.




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