Karen Ann Ulmer, P.C.
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Posts tagged "marital residence"

Exclusive Possession

Many parties in the process of separating are anxious to find out how they can get the other party out of a shared residence. For married individuals, a decision on which party will keep a marital property will not come until the end of the divorce matter and in the interim both parties retain the right to access the marital property. There are two exceptions to this general rule. First, a party may be evicted from a marital property in the context of a Protection from Abuse Order. A final PFA Order can remain in place for a maximum of three (3) years. The second way to have a party removed from marital property is through an application for exclusive possession.

Dividing the Marital Residence

The marital home is often one of the bigger assets to be divided in the context of a divorce. There are two options available regarding division of the marital residence. First, one party can keep the home and buy the other party out for their share of the equity. Equity would be determined by the fair market value of the home minus any mortgages or other liens on the home. The second option is for the home to be sold and the proceeds divided among the party. As a matter of equitable distribution, the disposition of a home would generally not be heard until grounds for the divorce have been established and the matter is scheduled for court. However, the family court has the authority to make determinations regarding a marital home even prior to or an equitable distribution hearing or entry of a divorce decree. The court can grant one of the parties exclusive possession of the home while the divorce is pending under Section 3502 of the Divorce Code. An award for exclusive possession should not be given lightly and the party requesting it has the burden of proving its necessity.

Issues with the Marital Residence

The family court has the authority to make determinations regarding a marital home even prior to or subsequent to a divorce decree. First, the court can grant one of the parties exclusive possession of the home while the divorce is pending under Section 3502 of the Divorce Code. Case law, however, has indicated that an award for exclusive possession should not be given lightly and the party requesting it has the burden of proving its necessity. Section 3323 gives the court general equity powers to issue any order necessary to protect the interests of the parties or as justice requires. This can include an order mandating a party to pay the mortgage on time, forcing the home to be sold if neither party can afford it, and even decisions on which realtor should be used or what the listing price should be. 

Exclusive Possession of Marital Residence

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. This provision was added to the law in 1990. Prior to that, the court had determined it had the authority to grant exclusive possession of the marital residence under the "full equity power and jurisdiction of the court" found at 23 Pa. C.S. §3323(f). This provision gives the court the authority to issue injunctions or other orders necessary to protect the interests of the parties. 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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