Exclusive Use of the Marital Residence During a Divorce: What Divorcing Spouses Need to Know

February 16, 2024

Navigating the intricacies of divorce proceedings can be daunting, particularly when it comes to matters like exclusive use of the marital residence. This aspect holds significant importance for divorcing spouses, as it involves temporary possession of the shared home during the course of the divorce. Understanding the legal framework and considerations surrounding this issue is crucial for individuals undergoing the divorce process.

Interim Orders Explained

During the pendency of a divorce case in Ohio, domestic relations courts have the authority to issue interim orders. Interim orders are exactly what they sound like: court directives that address various matters and remain in effect only while the divorce lawsuit is pending. These orders are typically requested by one of the parties during the divorce lawsuit and can take many forms. The most common types of interim orders issued by courts are interim parenting time orders, interim support orders, and interim orders pertaining to exclusive possession of a marital residence.

Since interim orders often overlap, they are typically addressed together and at the beginning of the litigation. For instance, if the court orders one party to vacate the marital residence, effectively requiring the parties to physically separate, the court will likely address how both parties will handle their respective living expenses during the divorce lawsuit (i.e. interim support) at that time. Similarly, if there are children involved, the court is likely to address the custody arrangements while the divorce is pending (i.e. interim parenting time) during the same proceedings.

Factors Influencing Exclusive Marital Residence in Divorce

Now, how does a court evaluate a request by one party to have exclusive possession of the marital residence during a divorce action? As a general matter, two critical factors influence the court’s approach to this question: (1) whether the request is contested, and (2) in what county in Ohio the divorce action is pending.

First and foremost, if the request for one spouse to have exclusive possession of the marital residence during the divorce is not contested (i.e. not disputed), it often streamlines the process substantially. Most often, a request for this relief is not contested if one of the parties has already voluntarily vacated the marital residence. While this may seem like common sense, it is not uncommon—and in some cases, can be advisable—for a party who effectively has exclusive possession of the marital residence due to the other party’s voluntary departure to still request a court order explicitly awarding them continued exclusive possession during the divorce proceeding. Courts tend to issue these types of orders on an ex parte basis (i.e. outside the presence of the party against whom the order is sought) if one of the parties has been voluntarily absent from the home for a period of thirty consecutive days with the intent to no longer reside at the property.

Second, it’s important to note than when a spouse requests exclusive possession of the marital residence during a divorce, and this request is contested (i.e. in dispute), the county in which the divorce case is pending can be critical to how, when, or if the issue will be addressed. In some Ohio counties, if one party makes a request for exclusive possession of the marital residence, the court will order one of the parties to vacate the home in the early stages of the litigation. To decide on this issue, the court will likely hold some type of hearing during which evidence and/or oral arguments are presented as to determine which party should be ordered to vacate the residence while the divorce is pending. Following this hearing, the court typically issues a written decision as to which party will have exclusive possession of the marital residence during the lawsuit, as well as the timetable for the other party to vacate the home.

Ohio Counties Vary on Marital Residence

In contrast, in some Ohio counties, and provided there are no concerns about ongoing or likely domestic violence, when there is a disputed request for exclusive possession of the marital residence, the court may delay addressing the matter until final trial. This, in essence, forces the parties to continue living together during the pendency of the divorce action. While requesting exclusive possession of the marital residence can still prove to be a worthwhile endeavor, it’s important to recognize that in these jurisdictions, timely negotiation of an acceptable global outcome to the lawsuit may take on a greater level of importance.

Interim issues in a divorce case can become intricate, especially because each Ohio county takes a somewhat different and nuanced approach to handling these issues. This is precisely why having an experienced domestic relations attorney can prove to be critical. For questions or guidance on these and other divorce-related issues, please contact Janet Stewart Scalley (js@kjk.com), or another member of KJK Family Law by calling 216-696-8700.