Exclusive Possession of the Home in Virginia

Posted on May 9, 2022 by Katie Carter

Having exclusive possession of the home – the marital residence – is a big deal for a lot of women facing divorce and custody cases. Many couples ultimately decide to live separate under the same roof for their period of legal separation up until their divorce, but, for others, that may seem like a complete impossibility.

There’s no question that, in any case, living separately but still in the same home is NOT easy. I don’t think it’s a period of time that any ex spouses look back to with any kind of fondness. In almost every case, it’s a financially practical decision, and that is literally the only reason that the parties involved are willing to do it for any period of time at all. For many people, up until there’s a separation agreement, a pendente lite order, or a final divorce order in place, their finances are such that obtaining a separate physical living space is not really possible.

Most people need to have equitable distribution, child support, spousal support, and other issues resolved before they’re able to buy or rent a new place to live. And that’s fine; in most cases, there’s no real rush to live separately. It may not be the happiest time, but living separately in the same home can make a lot of sense. (Though, if you thought it was unpleasant to live under the same roof BEFORE you separated, wait until AFTER you’ve separated!)

But if you feel that you absolutely, positively CANNOT, for one reason or another, live under the same roof, you’ve probably started to think about exclusive possession of the home. How can you structure life so that he’s forced to leave the home, and so that you and your children can leave peacefully within its walls while the divorce is negotiated or litigated? It’s a good question, and one that has a couple of different possible answers.

In short, it is within the court’s power to give one party or the other exclusive possession of the home while the divorce is pending.

So, unlike some things you might wish to do (like sue his mistress for alienation of affections – which is not allowed under the law in Virginia), there is a legal basis for this. It is legally possible for one spouse to be given exclusive possession of the home, and for the other spouse to be denied access to that home.

To be very clear, though: exclusive possession is not the same thing as ownership interest in the home. Even if you have exclusive possession, that does not mean that the home is yours. To the extent that it is marital property, it is still subject to division in equitable distribution – so he’ll get his piece of the pie, he just can’t physically reside in the home while you have exclusive possession.

As far as bills go – utilities, insurance, mortgage, etc – while one party or the other has exclusive possession, different courts handle it differently. Some will make the costs of the home the sole responsibility of the party remaining in the home; other courts will split the costs equally between the parties. I think that you’ll find that the ultimate disposition in your case will depend on the facts involved and where, exactly, your case is litigated. Talk to a Virginia divorce attorney to get a little more information about how your locality tends to handle this particular issue.

Getting exclusive possession of the home pendente lite

In a contested divorce case, a pendente lite hearing is often the first opportunity for litigants to come in front of a judge.

Pendente lite is Latin for ‘while the litigation is pending’, and it’s a hearing that addresses the temporary needs of the parties – you know, while the litigation is pending. At pendente lite, we usually address temporary child and spousal support, as well as exclusive possession of the home and some basic restraining orders (no wasting of the assets, no harassment, that kind of thing).

This is where, in most cases, we’ll ask for exclusive possession. In general, though, the court doesn’t like to throw a party out of his home absent some dramatic facts. We see exclusive possession granted most often when one spouse or the other has already left the home. For example, say that he’s gone to temporarily stay with his parents – that might be an opportune time to file for divorce, schedule a pendente lite hearing, and ask for exclusive possession. Once one spouse is gone, the court will find it much easier to grant exclusive possession.

As a bonus? After you have exclusive possession, you can legally change the locks. Before that point, if you change the locks and he breaks the door down, he’s legally within his rights to do so. You definitely don’t want that to happen, so wait until after you get an order for exclusive possession.

Does this sound like it’s kind of hard to get, especially if he won’t budge? Yeah, I would say that’s a pretty fair assessment.

Exclusive possession in cases of abuse

We also see exclusive possession stemming from a case where physical, emotional, or other abuse is present – usually, in the process of obtaining a protective order.

If you are granted a protective order, he won’t be allowed to go to the home. It’s not quite an order of exclusive possession, but you can take it that far. You can ask the judge to formally enter an order giving you exclusive possession of the home, and judges are often fairly liberal in cases where safety is in jeopardy.
Protective orders aren’t easy to get, though – you’ll probably find that you need solid evidence of physical abuse or threat of harm that makes you truly fearful for your life or the lives of your children. You should talk to an attorney if you have questions about whether your evidence is sufficient to get a protective order.

Since a protective order is quasi-criminal, judges take it really seriously. They don’t just give them out willy nilly. In an ideal case, you’d have police reports, hospital records, and other concrete evidence that supports the abuse.

In that case, it’s probably fairly likely that you’d be given exclusive possession.

Is there any other way to get exclusive possession of the home?

Aside from those two scenarios, it’s not easy to get exclusive possession. The court doesn’t like throwing people out of their homes. (Think about it in reverse; would you want the court to do that to you?)

If neither of you is willing to leave, you may just have to live separate under the same roof for a period of time. Or, alternatively, you could go. If you have friends or family that you can stay with, you may feel that’s a better place for you to be than in the same home as your soon-to-be ex. Be careful, though, and work with an attorney – learn a little more about desertion and constructive desertion as fault based grounds of divorce, and only leave after you have a clear plan established.

For more information or to schedule a consultation, give our office a call at 757-425-5200.