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Home > Who Has Exclusive Possession of My House?

Who Has Exclusive Possession of My House?

Ten years ago, in happier times, Miguel and Megan purchased their home together, owning the property and creating a tenancy by the entirety. A tenancy by the entirety is created between a husband and wife and by which together they hold title to the whole with Right of Survivorship.

Miguel and Megan are now in a divorce proceeding and Megan has filed a petition with the court to have exclusive possession of the house with their three young children pending the divorce. Miguel does not want to leave his house as he has owned and paid for the house for ten years. However, in a divorce proceeding, a Court may order an owner, husband or wife, to leave their house for a certain period of time and grant exclusive possession to the other spouse.

23P.S. 401(h) of the Pennsylvania Divorce Code provides that temporary exclusive possession of the marital residence may be granted to a spouse where the other spouse voluntarily leaves the marital home and establishes a residence elsewhere and where the best interests of the minor children dictate that they remain in the marital home. The Court has full power and jurisdiction to issue injunctions or other orders which are necessary to protect the interests of the parties. This conclusion is based in part on the Legislative findings and intent.

Section 102 of the Divorce Code states:

The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:

  1. Make the law of legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
  2. Encourage and effect reconciliation and settlement differences between spouses, especially when children are involved.
  3. Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment or matrimonial wrongs.
  4. Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
  5. Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.

The Pennsylvania Court first addressed the issue of exclusive possession in 1985 in the matter of Laczkowski v. Laczkowski. In this case, the parties owned a family home where they had resided with their minor daughter. Unfortunately, the husband engaged in such harassment and threats of violence to his wife and daughter as to cause them to leave the family home and seek residence with the wife’s parents. Husband thus took possession of the home and excluded his wife and daughter from the family home. Thereafter, wife filed a Petition for Special Relief asking for Exclusive Possession of the family home. The court focused on the well being of the child. Wife’s current situation was not conducive to a harmonious home life for the wife and her daughter and the living arrangements were not fair to the Wife’s parents. Wife had tried to rent suitable living accommodations for herself and her daughter, but was unsuccessful because of her lack of a credit rating and insufficient income. The court further found the Husband was gainfully employed and could easily rent an apartment or live with his Father who had adequate room for him. Based on these facts, the Court granted wife’s Petition for Exclusive Possession pending the divorce proceeding. The Court concluded that it is in the best interests and welfare of the children and Wife to permit their lives, both emotionally and physically, to be free of Husband’s unilateral decision to take possession of the family home. The mental and emotional health and welfare of the children and Wife should not be compromised by the ever-present knowledge that Husband can move in, out and about the family home without notice.

What then happens to the rights of the spouse who is ordered from the family home? Exclusive Possession Orders are temporary and the rights of the non-resident party must be considered. The non-resident spouse does not compromise his ownership interests and the property remains as titled by both owners. The non- resident spouse’s interest is considered at the time of Equitable Distribution as if he or she had not left the marital home.

If you are contemplating divorce or are in a current divorce proceeding and possession of your family home is an issue, I recommend that you review the legislative intent and factors set forth above in comparison with your particular set of circumstances. The court will focus on the welfare of the children with minimal consideration of the financial ability of the non-resident spouse to find adequate housing. Mediation of the issue of Exclusive Possession is an alternative to court litigation where additional factors may be considered to resolve the matter.

This article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. To schedule a consultation, please call our office at 610.436.0100.