Should We Draw a Line Down the Middle of our Marital Residence like in War of the Roses? Exclusive Possession in Pennsylvania

By: Robert B. George, Esquire

Under current Pennsylvania law, both spouses have the right to equal access to the marital residence after a divorce action has commenced.  This means that both spouses have the right to continue to reside in the residence if they so choose following the commencement of a divorce action by one of the spouses. While the exception to the norm, in my experience, this is not an issue for some couples who may be able to continue to co-habitat peacefully during the divorce process.  Other couples are able to agree that one of them will vacate the marital residence while the other continues to reside therein pending resolution of the divorce action.

The more frequently encountered situation, however, is when the continued co-habitation of the parties is not feasible for one or more reasons, and yet both parties refuse to vacate the martial residence.  In such cases, either party has the right to and may choose to file a motion with the Court requesting an award of exclusive possession of the marital residence, in which case the other spouse would be directed by the court to vacate, or leave, the marital residence.

When deciding a motion for exclusive possession, the judge will consider several factors for purposes of determining whether to award exclusive possession and, in cases in which both parties have requested it, which party should be awarded exclusive possession. For example, harassment by the non-filing spouse towards the spouse seeking exclusive possession may be considered, as such behavior can illustrate that the parties’ current situation is not conducive to a harmonious home life. The court may also consider the assets and incomes of the parties, as well as which spouse has the ability to locate to a new residence. The court may also look at whether or not the parties have children and which spouse is the primary caregiver for the children.

Exclusive possession merely provides a spouse with the right to exercise physical control over the marital residence while the divorce is pending, without the interference of the other spouse. Absent agreement between the parties and/or an order of court, the other spouse is not permitted to enter the home.  Importantly, however, an award of exclusive possession does not entitle the filing party to sell, otherwise encumber the residence, or take any other unilateral action that might be of prejudice to the ownership interest or other rights of the spouse that has been forced to vacate the marital residence.

The marital residence is still considered to be a marital asset, and is subject to distribution between the parties at a later date during equitable distribution in the underlying divorce case.   Additionally, a grant of exclusive possession does not create a legal presumption that the spouse with exclusive possession shall be awarded the residence in the final distribution of assets.  Nonetheless, it has been my experience, that the spouse who is granted exclusive possession during the pendency of the divorce proceeding is more likely to be awarded the martial residence in equitable distribution.

In order to ensure that your rights and interest in your marital residence are protected and preserved, it is important that you consult with an attorney experienced in this area of the law, if you find yourself confronted with a situation involving exclusive possession.

The attorneys at the Law Firm of DiOrio & Sereni, LLP are experienced and available to help you. Contact Robert B. George, Esquire at 610-565-5700, or send him an e-mail at [email protected].

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The Law Firm of DiOrio & Sereni, LLP, is located in Media, PA and serves clients in and around Media, Glen Riddle Lima, Brookhaven, Wallingford, Newtown Square, Lenni, Springfield, Swarthmore, Chester, Aston, Bryn Mawr, Morton, Woodlyn, Broomall, Gradyville, Folsom, Chester Heights, Crum Lynne, Glen Mills, Marcus Hook, Ridley Park, Drexel Hill, Marple, Bethel, Garnet Valley, Chadds Ford Concord, Chester County, Delaware County, Montgomery County, Philadelphia County.

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