Every divorce comes with its own challenges, but there is always more on the line when the mere thought of filing for divorce leaves you fearing for your safety or the safety of your children. In some cases, your spouse might suffer from severe anger issues, where even the slightest bad news will set them off. In other cases, they might be very controlling, and the thought of losing that control prompts them to invoke abusive behavior. In either case, you know you need to escape, but you feel stuck – fearing that taking the right steps will place yourself or your children in harm’s way. In these extreme cases, there are tools that can protect you. This article will focus on a Motion for Exclusive Use of the Marital Residence, which can be used in conjunction with filing for divorce.
The point of a Motion for Exclusive Use is to give you sole use and possession of your residence to the exclusion of your spouse. That means they are not even allowed to enter the property, even if their name is on the deed, mortgage, or lease. In many cases this will deescalate the situation and keep everyone involved safe. So, what do you need to show to be granted this type of order?
In order to be granted Exclusive Use, you need to allege facts that would lead to irreparable harm and/or show that the other party would not be prejudiced if the judge grants your motion. Facts typically needed to show irreparable harm include police reports of domestic violence, CPS reports of anger/abuse towards children, pictures of bruises, statements by the other party that include threats of violence, death, or other severe threats, and the like. Alternatively, a judge may grant your motion if you have already separated and your spouse is residing somewhere else. In this case, there would be no reason for them to return to the marital residence; thus, there would be no prejudice in excluding them from doing so.
The final thing to consider is your judge. Every judge is different, and what one judge may find to be irreparable harm, another judge might find that no such harm exists. In most cases, you will not know who your judge will be until you actually file for divorce, which is when you also typically file your Motion for Exclusive Use. Therefore, it is important to speak with someone that has knowledge of the judges in your county so you have more of an idea of what to expect before you file. If you are considering filing for divorce and fear for your safety, speak to an experienced attorney to see how you can best protect yourself and your loved ones.
Daniel Barnett is an associate attorney with Grewal Law PLLC. His practice areas include commercial litigation, general civil litigation, family law, criminal law, and, personal injury.