What Is Exclusive Possession of the Marital Home?

Living situations can become particularly precarious during a divorce. The marital home is where the parties reside during the term of the marriage, and normally, the names of both spouses are on the deed or lease.

One of the questions that often arises when a divorce is filed is where are you going to live.

  • Are you going to live in the marital home with your spouse?
  • Are you going to have to find a new place to live?

While the final divorce decree will indicate what will happen with the marital home, including who, if anyone, will  remain in the home, the Courts can also determine who will live in the home on a temporary basis during the pendency of the proceedings.

If you want to remain in the marital home, then you must petition the court for exclusive use and possession of the marital home.

Exclusive Use & Possession of the Marital Home

Exclusive use and possession of the marital home gives one spouse the right to remain in the home both during the pendency of the action and potentially when the divorce is finalized. When one spouse has exclusive use and possession of the marital home, the other spouse is prevented from returning to the home. If there are children involved in the divorce, a judge will likely ensure that the parent who has the majority of timesharing with the children remains in the marital home.

Injunctions and Restraining Orders

Incidences of domestic violence between a married couple adds a level of complexity in a dissolution of marriage action. The victim may ask the court for an injunction from the court. An injunction will include a provision giving the petitioner exclusive use and possession of the marital home.

Changing the Locks Without a Court Order

Some individuals feel as though they cannot wait for a court order to prevent their spouse from coming to the marital home so they change the locks before a judge grants them the exclusive use and possession of the home. In these cases, one of two things is likely to happen.

The person locked out of the home may call the police. If officers arrive on the scene, they will likely allow the spouse to enter the home to get their belongings, or may even tell the person that changed the locks to allow them back inside until the matter is resolved in civil court.

If the spouse that is locked out does not call the police, they may try to break and enter. This is not a crime because without a court order saying otherwise, the spouse likely has the legal right to be inside the home.

In either case, it is typically not worthwhile to change the locks of the marital home unless one spouse has been awarded exclusive possession.

Our Florida Family Lawyers can Help with Your Case

At O’Mara Law Group, our Orlando family lawyers can review your case and help you secure the best terms possible, including exclusive possession if it is necessary. If you are going through a divorce, call us at (407) 634-6604 or contact us online to get the legal help you need.


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