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Bar News - November 19, 2014

Family Law: Gaining Possession of the Marital Home: Factors to Consider


In divorce cases, helping a client gain temporary possession of the home – often the most valuable asset in the marital estate – is a complicated matter that requires consideration of several important factors, including mental states, in-laws, children and financial issues.

New Hampshire law is sparse regarding temporary possession of the marital home. There are, however, a few statutes and secondary sources that lend guidance.

Pursuant to NH RSA §458:16(I)(h), the court can order the sale of the parties’ marital home prior to the finality of their divorce if both parties file a stipulation with the court clerk agreeing to the sale. Without that stipulation, the law states, the court won’t order the sale of the home, “as long as the court deems the party residing within the marital residence to have sufficient financial resources to pay the debts or obligations generated by the property, including mortgage payments, taxes, insurance, and ordinary maintenance, as those debts and obligations come due.”

For a client in a difficult financial position, it may be wise to seek child or spousal support, as this added income can make or break the client’s ability to afford and retain the marital home.

Pursuant to NH RSA §§461-A:10, 458:16, and 173-B:4, the court can also issue protective orders to stop a party from abusing another party. If abuse is proven by a preponderance of the evidence, the court has wide discretion to issue temporary orders, including awarding exclusive possession of the marital home.

It is paramount that counsel uses good judgment in advising a client regarding these measures, as these orders can lead to the breakdown of all communication between the parties and will likely stifle good co-parenting (if children are involved). If physical violence has occurred, however, a protective order may be necessary to protect your client.

Absent a showing that one party cannot afford the marital home or that abuse has occurred, counsel must make creative arguments to show that his/her client ought to obtain exclusive possession of the marital home pending a final ruling. A Practical Guide to Divorce in New Hampshire, Volume I (2012), suggests that the court consider the following factors in determining whether to award temporary possession of the marital home exclusively to one party:

Primary residential responsibilities for the children while divorce is pending. The court looks at whether one party is responsible for the children and whether it is in the children’s best interest to remain in the marital home while the matter is pending. Courts often find that it is in the children’s best interest to remaining in the marital home for purposes of stability and to keep children in a particular school district.

Does the home serve as a home business? Courts may be apprehensive to make one party vacate a particular residential property when it also serves as a well-known storefront.

Does either party have the financial wherewithal to relocate temporarily? It is extremely important for counsel to correctly draft a client’s financial affidavit and to scrutinize an opponent’s financial affidavit in making arguments surrounding the ability of one party to relocate temporarily.

While the above-mentioned factors are a good starting point, the following factors should also be considered in making a strong argument for exclusive possession of the marital home:

  • Physical or emotional abuse, but no protective order. If a party elects not to pursue a protective order, but emotional or physical abuse has occurred, then it should be pled in any Motion to obtain exclusive possession of the marital home, as it is may show that the cohabitation arrangement is worsening and that it is no longer practical or safe to have both parties living under the same roof.
  • A severe and adverse effect on the parties’ children. Any factor that negatively affects children should be pled in an effort to secure their safety. For example, if awarding the marital home to one party during the pendency of the divorce will keep the children in a particular school district, then it is likely that the Court will take these measures. On the other hand, if one of the children has special needs, and raising this child is extremely difficult, then it may be more practical for both parties to remain in the marital home.
  • Family ties to or inheritance interest in the marital home. A party may argue that the home has sentimental value and should not be given to the spouse.
  • Was the marital home a pre-marital asset? Is the deed in one party’s name? Many times parties either inherit or buy property prior to marrying. A party should argue that this piece of property is not a marital asset and is not subject to property division under NH RSA 458.
  • In-laws living in the marital home? It is becoming increasingly common for couples to allow other family members to live with them. If one of the parties has a relative living with them in the marital home, this should be made known to the court, so that the smallest number of people are displaced.
  • Does one spouse have a physical disability? If so, the court will consider whether improvements have been made to the marital home that increase the disabled party’s mobility. Courts often assess the cost for the parties to find suitable housing. In the case of a disabled person, this cost is often excessive or extraordinary.
  • Does one party have a substance abuse issue? If one party has substance abuse problems, and this issue causes extreme stress or property destruction, then this should be considered a strong factor in awarding exclusive possession of the marital home to the non-addicted spouse.
  • Are there are bankruptcy and/or foreclosure issues that will negatively impact one party? If there is equity in the marital home and a party files bankruptcy, or the home will be foreclosed on prior to finality of the divorce, it is important to consider how each party’s homestead exemption will be affected. In either situation, preservation of each party’s homestead exemption is typically in the best interest of both parties and should be addressed in a temporary order.
  • Have the parties owned the marital home for a short or long period of time? If marital home was owned for a very short period of time, then a party who put a large down-payment or made significant improvements to the property can make a strong argument for possession of the marital home. Alternatively, if the parties owned the home for a long period of time, then this may be a factor that continued cohabitation is warranted.
  • Has one party committed waste? If one of the parties has substantially harmed the marital home or dissipated substantial household utilities, then this is a strong indicator that this party should be prohibited from returning to the property.
  • Any positive or negative tax implications regarding one party’s temporary and exclusive possession of the marital home. The Court will take into consideration whether any third parties have made down payments and/or mortgage payments on the marital home when determining if exclusive possession should be granted. Additionally, the Court may take into consideration classifying temporary mortgage payments as “alimony” for the payor spouse in exchange for the retention of the marital home by the other spouse. This will likely lower the taxes for the payor spouse, as alimony is tax-deductable for the payor.

Matthew Passalacqua

Krista Atwater, a contract attorney with the NH Bar Association Foreclosure Relief Project, contributed to this article.

Matthew Passalacqua is admitted in New Hampshire and Massachusetts and specializes in domestic relations law. He is associated with Kajko, Weisman, Colasanti & Stein, in Lexington, Mass., and can be reached at (781)860-9500 or Julie R. Hess and Peter Kajko provided support on this article.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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