What Is Exclusive Possession of the Marital Home?

If you file for divorce, the final divorce decree will determine who receives possession and can live in the marital home. However, if you want sole use and possession of the home before the divorce is finalized, you must petition the court. O’Mara Law Group’s family lawyers in Florida will offer legal advice and assistance to help you obtain sole possession and use of the home.

Individuals often wonder about their right to stay in the family home while divorce proceedings are pending. In Florida, both spouses have the right to live in the marital home before the divorce is finalized. Even if you and your spouse agree to separate and live apart, your spouse still has a legal right to access and stay on the property pending final divorce proceedings. That right means you cannot change the locks during this period because you lack sole legal possession of the property.

If you are going through a divorce and want exclusive possession and use of the marital home pending proceedings, seek help from O’Mara Law Group’s experienced Florida family lawyers. We can assist you in obtaining exclusive possession of the property pending the conclusion of your divorce proceedings.

What Is the Marital Home?

In Florida, the marital home is the dwelling acquired during the marriage, individually by either spouse or jointly by them. It is part of the couple’s marital assets.

After a divorce is finalized, the court will decide, with a motion for exclusive use and possession of the marital residence, who gets the right to live in the home and who doesn’t. However, before the divorce is finalized, both parties may occupy the marital home, which can create disagreements and disturbances.

What is Exclusive Possession of the Marital Home?

Exclusive possession of the marital home is when one spouse is authorized to live there while the other spouse must live elsewhere. 

Here is a breakdown of how exclusive possession of the marital home works amid various factors, including children, a prenup, domestic violence, or if one spouse “abandoned” the home.

When Children Are Involved

If the couple has children, the children’s primary caretaker may file a motion for temporary support, time-sharing, and other relief, asking the court to grant exclusive possession of the home. The court will determine if it is in the children’s best interests to keep living in their home. In such cases, the parent with temporary child custody may also get temporary exclusive possession of the marital residence.

If There Is a Prenuptial Agreement

If the couple has a prenuptial or postnuptial agreement that specifies who will have sole possession of the marital home, they should abide by the agreement’s terms.

If There Is Domestic Violence

If there is a history of domestic violence between a married couple, the victim may ask the court for a domestic violence or restraining order. The order or injunction almost always includes a clause giving the victim exclusive possession of the marital residence.

If the Spouse ‘Abandoned’ the Home

If a spouse has left the marital home and taken their belongings, your lawyer can argue that they have abandoned the home. This argument can help you gain exclusive occupancy. However, the court must rule that abandonment has occurred for you to obtain legal sole occupancy of the home.

Can a Separated Spouse Enter the Home?

Yes, a separated spouse can enter the home even if they move out of the home. They have this right because Florida is one of six states that do not recognize legal separations. As such, the separated spouses are still considered married and can access the marital home until the divorce is finalized.

Can I Change the Locks on My House During a Divorce?

No, you should not change the locks on your house because your separated spouse has the legal right to enter the home before the divorce is finalized.

If you change the locks, your locked-out spouse may call the police, who will probably let them enter the home. The police also may tell you to let your spouse back in while the divorce is pending. Further, there is a possibility that your spouse may try to break and enter. This is not a crime because the spouse has the legal right to be in the home.

How a Compassionate Family Lawyer Can Assist with Your Divorce

Living with your spouse during divorce proceedings can be emotionally exhausting, especially when children are involved. 

That is where O’Mara Law Group’s divorce attorneys for women come in. Our uncontested and contested divorce lawyers possess the knowledge and experience necessary to help ensure your comfort and safety during a divorce. Here are some benefits of working with us.

Rely on an Orlando Divorce Attorney From the O’Mara Law Group

Florida family law is complex. An Orlando divorce attorney from the O’Mara Law Group will guide you through the legal system, fight for your rights, and help you feel safe and secure in your home during divorce proceedings.

O’Mara Law Group has more than 35 years of experience in family law and criminal defense. We have many compassionate and knowledgeable lawyers, including the following.

Schedule a consultation with our Orlando property division lawyers today to learn more about your options.


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