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In an action for divorce, separation or annulment, a New York Supreme Court can award exclusive use and occupancy, also known as exclusive possession, of the marital residence to one party. It is irrelevant if the property is titled jointly to both parties. The Court can issue such an order before the final judgment, known as pendente lite order, or as part of the final judgment of divorce, separation or annulment.Â
 To receive an award of exclusive use and occupancy of the marital residence pendente lite, the requesting party must demonstrate either that the spouse’s presence in the home has caused domestic strife and that spouse has established an alternative residence or that exclusive occupancy is necessary to protect safety of persons or property at the premises.Â
 An application for pendente lite exclusive use and occupancy of the marital residence must be made in a pre-trial motion. The Court can award exclusive use and occupancy without conducting a hearing if the Court believes that sufficient evidence has been presented in the motion papers. Generally, the following evidence is required to be contained in the motion papers for exclusive use to be awarded without a hearing:Â
- Â An affidavit submitted by the party in support of the request contains allegations of violent threats by the other spouse;
- Proof of prior police intervention, such as through police reports;
- An order of protection protecting the requesting spouse against the other party was previously issued;
- The presence of uncontroverted medical evidence, such as medical reports of physical and/or emotional abuse;
- Third parties submit affidavits in support of the allegations against the spouse.
 If the motion papers contain allegations against the spouse that may be sufficient to warrant an award of exclusive occupancy, but do not include the above evidence, the Supreme Court may schedule a hearing.
