A common question among parties to a divorce is who gets to live in the house the parties share, frequently referred to as the marital residence, during the divorce. Ideally, this is a decision that the parties will reach together. If the parties are unable to reach an amicable decision, however, the natural reaction might be to ask the court to enter an order in favor of one spouse over the other. The question is usually presented to the court through a motion for temporary orders. Absent the presence of some core issues, however, the court may be unwilling or unable to make such a decision.

In Arizona, a party may seek temporary orders for a number of purposes. Such purposes include spousal support, child support, attorneys’ fees and, in some cases, the exclusive use of the martial residence. The Arizona statute governing temporary orders provides that a party may seek an order of the court “[e]xcluding a party from the family home of the other party on a showing that physical or emotional harm may otherwise result.”

In cases where one party has or is committing acts of domestic violence against the other party, or the parties’ children, the question may be resolved outside of the divorce proceedings. For example, if one spouse is awarded an order of protection against the other as a result of domestic violence, the court will generally grant the victim the exclusive use of the martial residence. Indeed, for many this is the first step in the divorce process. A superior court judge presiding over a divorce is unlikely to overturn the order of protection and the grant of exclusive use of the marital residence if it is apparent that domestic violence has occurred.

If the divorce proceedings have begun, a victim of domestic violence can still seek to obtain exclusive use of the marital residence by requesting that the court enter temporary orders excluding the other spouse from the martial residence. Absent a showing of domestic violence or some type of severe emotional abuse, however, the court may be unwilling to grant one party the exclusive use of the marital residence to the exclusion of the other.

The foregoing analysis may not apply when one spouse has already relocated from the marital residence. In one case, the court found that the spouse remaining in the residence was entitled to exclusive use of the residence because the other spouse had already relocated and she was not incurring any additional expenses in relation to her new residence.

On the other hand, just because a spouse has moved out does not mean that the remaining spouse has exclusive use of the marital residence. In another Arizona case, a wife, who had voluntarily relocated, re-entered the marital residence through a dog door when she knew that the husband was not home. The wife encountered the husband’s girlfriend, who then called the police. The husband obtained an order of protection against the wife based upon her “criminal trespass.” The court of appeals overturned the trial court finding that wife retained the right to access the premises because the court had not issued an order granting either spouse exclusive use of the house. Neither spouse is entitled to exclusive use of the marital residence until the court issues an order.

The clear lesson is that absent a showing of physical or emotional abuse, the court is not likely to grant one spouse the exclusive use of the marital residence to the exclusion of the other spouse. Parties are advised that the most efficient and economical way to resolve the question of who gets to live in the house is through an amicable agreement. It is always risky asking a judge to make this type of decision. When it comes to the question of exclusive use of the martial residence, parties may find that after spending significant money on the question the court will not grant exclusive use to either party. Under these circumstances, the question of who will reside in the house may have to wait until trial.