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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
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Experience:  25 years experience as practicing attorney
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Can a wife take possession of the residence prior to a divorce

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Can a wife take possession of the residence prior to a divorce if the husband is contesting moving out? Assume that the wife is paying the mortgage and all utilities and intends to pursue joint custody but primary care for their 6 year old son.
Dear JACUSTOMER - Each party has an equal right to the marital residence until there is a court order to the contrary. The wife can file a motion as part of the divorce case for "exclusive use" of the premises and if the court grants the motion then she can take possession and her husband will have to move. Until that happens there is no way to get exclusive use unless there is domestic violence. If that occurs then the wife can apply for a protection order from the court and have the husband removed. So, under the facts presented, the wife needs to file for exclusive use and make her case as to why the husband should be forced to move.
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