Who Decides Who Gets to Live in the House While We Go Through the Divorce?

Papers are filed, the dissolution action is pending before the Court, and you may think you are on your way to living separate and apart from the other person for the rest of your lives. Don’t start changing the keys on the door too fast. Neither party is required to leave the marital residence during the divorce unless a court orders one party to leave. If you and your spouse cannot reach an agreement regarding which of you will leave the residence during the divorce, you may seek a temporary order for exclusive possession of the home until the case is concluded.

The judge will only grant your temporary order for exclusive possession of the home under certain conditions. You must be able to show that physical or emotional harm may result. Abusive behavior is one basis for seeking temporary possession of the home. In addition, talk to your attorney about other factors that may be relevant.

Other factors that may be important in determining who stays in the home include:

  • Whether one of you owned the home prior to the marriage.
  • After provisions are made for payment of temporary support, who can afford to remain in the home or obtain other housing.
  • Who is most likely to be awarded the home in the divorce.
  • Options available to each of you for the other temporary housing, including other homes or family members who live in the area.
  • Special needs that would make a move unduly burdensome, such as a health condition.
  • Self-employment from home, which could not be readily moved, such as a child-care business.

Absent being able to show the court that it is necessary for one person to leave the residence, you may find that you have to continue residing together until one of you voluntarily moves out, or the divorce is final and the home is either ordered sold or awarded to one of you.

About the Authors:

Marlene Pontrelli is a Member in our Phoenix office. Marlene is a certified specialist in family law. Her practice focuses on all aspects of family law including dissolution, post-dissolution, paternity, child custody and child support matters. She is admitted to practice in California and Arizona. She is a member of the State Bar’s Family Law Practice and Procedure Committee and is a judge pro tem for the Superior Court of Maricopa County in family law. She has extensive trial and appellate experience including appearing before the Arizona Court of Appeals, Arizona Supreme Court and Ninth Circuit Court of Appeals.

Ms. Pontrelli has written several books, including as a co-author of the Divorce in Arizona book. She is a frequent lecturer in the area of family law and has conducted workshops throughout the country. Ms. Pontrelli is also an adjunct professor at The Sandra Day O’Connor School of Law at Arizona State University, where she teaches the family law class. Marlene may be reached in our Phoenix office at 602-285-5081.

Bob Schwartz is a Member in our Phoenix office. Bob has been practicing law for over 40 years, specializing in family law. He is a member of the American, Arizona and Maricopa County Bar Associations. He is admitted to practice in the federal courts of New York, Arizona, Ninth Circuit Court of Appeals, and the U.S. Supreme Court. Mr. Schwartz is a fellow of the American Academy of Matrimonial Lawyers and past president of the Arizona chapter. He serves as a judge pro tem for the Superior Court of Maricopa County in family court matters. He is a certified family law specialist by the State Bar of Arizona; is a frequent lecturer on family law and related matters; and, former member of the State Bar Family Law Advisory Commission. Mr. Schwartz has tried numerous complex business valuation cases as well as complex custody cases. He has testified as an expert in family law matters. Bob co-authored the Divorce in Arizona book. He may be reached in our Phoenix office at 602-285-5020.