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Exclusive Possession of Marital Home

Once a relationship starts to turn south one of the first objectives is often to find a way to physically separate. This can be difficult if the parties own a home together. Neither party may want to give up the marital residence. It can also be difficult financially to go from sustaining one household to two. In situations where there is a lot of hostility, tension and potential for even physical fighting, it is necessary to get a party out of the home sooner rather than later for the sake of everyone involved. Pursuant to 23 Pa. C.S. § 3502(c), the court has the express authority to award exclusive possession of the marital residence to one or both parties during the pendency of the divorce. Laczkowski v. Laczkowski, decided in 1985, was the first case to hold that the court could award exclusive possession of the martial residence during a divorce. 344 Pa. Super. 154 (Pa. Super. 1985). In Laczkowski, the home was to be given to the spouse having physical custody of any minor children.


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Other cases have established other circumstances where an exclusive possession order would be appropriate. In Uhler v. Uhler, the court looked primarily at the emotional welfare of the children while also stressing that exclusive possession should only be awarded sparingly. 428 Pa. Super. 630 (Pa. Super. 1993). In Vuocolo v. Vuocolo, the court held an award should be based not only on the needs of minor children, but also the age and health of the parties and their financial needs and resources. 42 Pa. D. & C. 398 (1987). For example, an income dependent or disabled spouse would have a more difficult time starting anew somewhere else. In Merola v. Merola, the court granted exclusive possession where the wife was vulnerable and confined to a wheelchair. 19 Pa. D. & C. 4th 538 (1993). In Duzgon v. Duzgon, the court did not grant exclusive possession based on wife's allegations of tension in the home because of husband's phone calls to his girlfriend. 76 Pa. D. & C. 4th 538 (2005). The court's rationale was that there was no abuse between the parties and hence no clear need for husband to be excluded from the home. In sum, an award of exclusive possession is a harsh remedy that will not be awarded without clear need and is more likely to be awarded where minor children are involved.

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