Exclusive Use and Possession

The legal term exclusive use and possession refers to an agreement, or court order, for one spouse to use and maintain possession of certain marital property during a divorce. When a couple divorces, the issue of who will live in the family home, or who will use the family car, must sometimes be decided by the court. Being given exclusive use and possession of any item of marital property does not mean that the spouse is made the permanent owner, but that he or she is allowed the right to use it temporarily until the divorce is finalized. To explore this concept, consider the following exclusive use and possession definition.

Definition of Exclusive Use and Possession


  1. The legal right to use and take possession of something exclusively.

Understanding Exclusive Use and Possession

When a spouse files for divorce, he or she does not automatically get to keep whatever marital property he or she is in possession of when the petition is stamped. If this were the case, the last spouse to make it to the court clerk’s office would be left in the cold in every divorce. Although it becomes necessary for one spouse to leave the family home, and it must be decided who gets to use the family car and other property, in some cases, the couple cannot agree. This can make a bad situation even more volatile, and even result in violence in extreme cases.

In situations in which the couple cannot agree on who gets temporary use of marital property, one or both parties may request that the court grant them sole and exclusive use and possession of certain specific property. These are temporary orders made to ensure, for example, the parent who is primarily caring for the children is able to do so in the family home, or that the spouse who needs to commute to work can use the family car. Motions for exclusive use and possession of any marital property should be made only where there is a great need, and not to gain a court order for temporary possession of the family photo album.

Even when one spouse does voluntarily leave upon separation, the remaining spouse may want to keep him or her from returning without permission. This may be due to fear, or simply a need to protect privacy. In such a case, the remaining spouse may petition the court for exclusive use and possession of the home, though there is no guarantee it would be granted. The same is true of personal property such as a car. In order to prevent the other spouse from simply coming and taking it as they please, exclusive use and possession must be granted.

Factors Considered by the Court in Granting Exclusive Use and Possession

One spouse is not always granted exclusive use and possession of the family home, or other marital property, as many courts view it as a last resort, or a harsh remedy. Ideally, one spouse will solve the issue of being unable to live together civilly by leaving the residence voluntarily. When this does not occur, and one spouse files for exclusive use and possession of the home, the court will consider a variety factors in determining whether or not to grant the request, and to whom. These factors include:

  • Drug abuse
  • Serious misconduct
  • Emotional abuse
  • Physical abuse
  • Other types of harmful behavior
  • What is in the best interest of the children, if applicable
  • Which spouse is able to care for and properly maintain the property

Evidence required to prove one’s case for exclusive possession varies by jurisdiction, and by the situation. For instance, one state may not consider a single act of violence that occurred in the past, with little likelihood that it will happen again, sufficient reason to grant one spouse exclusive use and possession of the residence. In any case, conflict between the spouses that affects children in the home is likely to gain such an order, requiring one parent to leave the home.

Domestic Violence and Exclusive Use and Possession

According to the laws of the United States, both people in a marriage have the given right to live without fear of physical or emotional harm caused by their spouse. Unfortunately, domestic violence does occur, and when it becomes an issue, the victimized spouse may request a Domestic Violence Restraining Order (“DVRO”) from the court.

The specific process and requirements for obtaining a DVRO vary by jurisdiction, but when there is reasonable proof that abuse is happening, an order will be granted. Such an order of protection prohibits the abuser from coming within a specified distance from the victim, usually 100 yards, and the abuser is required to leave the home until the court makes a permanent order on the case.

This effectively gives exclusive use and possession of the home to the victim for the time the DVRO is in effect. If the restraining order expires, or is rescinded for any reason, the abuser would be allowed to return to the residence unless another order for exclusive use and possession of the residence has been obtained from the court.

Other Factors Considered

Another factor that the judge may consider is the ability of each spouse to find replacement housing. For example, if the husband was the primary financial provider in the marriage, the wife may have a more difficult time finding new housing due to financial hardship. In such a case, the court may award temporary exclusive use of the home to the wife, as the husband would likely find a new home more easily.

Another factor considered is whether one spouse is more willing or able to maintain the home or property. This includes home maintenance and repairs, yard maintenance, and other factors that affect the property’s value.

Exclusive Use and Possession of Cars and Other Property

The family residence is not the only asset that is the subject of motions for exclusive use and possession. Many parties to divorce petition the court for sole possession of such items as the family car, certain appliances, and important household furnishings, such as the bed or an entertainment center. When one spouse leaves the home, squabbles often arise over such furnishings.

Most courts do not look favorably on individuals requesting exclusive use of the television or yard furniture, they will entertain requests for important items such as the refrigerator, often ordering major appliances stay in the family home. Regardless of any temporary orders made regarding use, all of the marital assets, including personal property, real property, financial assets, and debt are subject to equitable division when the divorce is finalized.

Permanent Possession

When a court awards a person exclusive use and possession of an item, it is a temporary order to alleviate a temporary situation. As the divorce progresses, the assets will be divided according to the laws of the state, distributed between the parties as fairly as possible. Any property that was owned by one party prior to the marriage remains that party’s sole property.

Violating an Exclusive Use and Possession Order

When a person is granted exclusive use and possession of the home or other item, the other spouse cannot come and go, or use the property, as he pleases. This is true even if the spouse not in possession continues to pay the bills for maintenance of the property. When a spouse is found violating an exclusive use and possession order, the spouse in possession may contact the police to file burglary or trespassing charges, pursue a contempt of court action, or both.

When a person is found in violation of the order, he or she may face:

  • Fines
  • Community Service
  • Probation
  • Jail time
  • Or any combination of the above

Termination of Exclusive Use and Possession

While specific statutes governing exclusive use and possession vary by state, it is generally left to the court to determine when termination of exclusive use and possession should occur. This most commonly occurs when the divorce is finalized, at which time the marital property is distributed according to the divorce decree or marital settlement agreement.

It is possible, however, for the court to order that one spouse retain exclusive use and possession of certain property, most commonly the residence, for a specified period of time after the divorce is finalized. This may occur to allow the children to continue living in their home for a specified period of time before the non-custodial parent is allowed to possess or sell the property.

Related Legal Terms and Issues

  • Civil LawsuitA lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Contempt – A deliberate act of disobedience, or disregard for public authority, such as a court.
  • Contract – A written or spoken agreement between two or more parties that is enforceable by law.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Hearing — A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
  • Personal Property – Any item that is moveable and not fixed to real property.
  • Victim – A person who is injured, killed, or otherwise harmed as a result of a criminal act, accident, or other event.