Occupancy Of The Marital Home in Divorce

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Initiating a divorce is often the beginning of a process that can take months or even years to complete. While many couples are aware that issues like child custody and alimony will arise during a divorce, divorcing couples in Birmingham often fail to consider other living arrangements. Just because a divorce is initiated, however, does not mean that one spouse will immediately leave the marital residence. In many situations, spouses have contributed to the marital home which makes it difficult to determine which party should leave the marital residence. Individuals who are faced with a dilemma concerning which spouse will maintain occupancy of the marital home frequently turn to the experience of a top Birmingham divorce lawyer. Clients also often benefit from understanding some of the issues that arise during a divorce concerning ownership and occupancy of the marital home.

Equal Rights To The Marital Home

In the state of Alabama, both spouses have equal right to the marital home until a judge enters an order for exclusive possession of the residence. This order can take one of several forms.  Until this order is entered, a party cannot take action to assert exclusive control over the marital home. Not only should spouses resist performing these types of controlling actions, spouses should also avoid moving out of the marital home prior to the judge's order because an early move out of a marital residence can potentially be used to argue that the spouse who moved out has sufficient resources to do so.

Types Of Exclusive Possession Orders In Birmingham

The granting of exclusive occupancy of the marital home in Birmingham is not available during all divorces. Temporary exclusive occupancy is only available in some circumstances where a spouse has a legitimate reason why the other spouse should be removed from the home.

One of the most common types of orders that dictates exclusive possession of a marital home is when domestic violence occurs between divorcing spouses. In these types of situations, a court might grant either a protection from abuse order or an ex parte order.

When a petitioning spouse's safety is threatened due to domestic violence, there must be an ample amount of evidence to justify exclusive occupancy of the marital home. These types of evidence can include: any prior history of domestic violence, the availability of a protection order, medical evidence of physical abuse, and prior police intervention regarding the couple.

There must be a greater reason for a court to grant an exclusive occupancy order rather than the couple simply not getting along any longer. If there is insufficient evidence to demonstrate why an exclusive order should be granted, courts also have a tendency to deny an individual's requests. A special note should be made of the duration of exclusive possession orders, which only remain in existence while a divorce is pending.  

How An Experienced Birmingham Family Law Attorney Can Help


If you are involved in the middle of a divorce process in Birmingham and concerned about ownership of the marital home, do not hesitate to retained the services of a top Birmingham family law attorney. At Eversole Law LLC, our legal talent offers strong representation and knows how to help clients navigate a variety of divorce related issues.

We serve the following localities:

Birmingham, Jefferson County including Bessemer, Homewood, Hoover, Irondale, Leeds, Mountain Brook, Trussville, and Vestavia Hills, Shelby County (including Pelham, Alabaster, Chelsea, Calera), Tuscaloosa, Auburn, Huntsville, Calhoun County including Anniston, Etowah County including Boaz and Gadsden, Cullman County including Arab and Cullman, Madison County including Huntsville and Madison, Montgomery County including Montgomery, and all of Alabama.

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