Using an exclusive possession order to stay in the matrimonial home

On behalf of Kirk Montoute Dawson LLP posted in Family Law on Saturday, November 1, 2014.

The matrimonial home is the most valuable asset in many divorces, and sometimes spouses disagree about who should leave the home during separation. Leaving the home does not necessarily mean that the spouse or partner who stays will keep the asset forever, but in many cases, staying in the home can be advantageous while matters of divorce are settled.

In Alberta, if you and your spouse disagree about who should stay in the matrimonial home or continue using household goods, then you can apply for an exclusive possession order. This type of order can give one party exclusive possession of the matrimonial home or other items of property, including the family vehicle. To obtain an exclusive possession order in Alberta, you must make an application in the Court of King’s Bench.

In addition to giving one party possession of the property, an exclusive possession order can be used to evict the other party from the home or restrain him or her from being near the home. This type of court order can be especially useful if there is a likelihood of heated conflict between the spouses.

The court will consider a number of factors before making an exclusive possession order. For example, if there are children living in the home, what are their needs? Does the spouse who would leave the home have other living arrangements? What are the parties’ financial situations? If the home is leased, then what are the terms of that lease?

It should also be noted that applications for spousal support, partner support or child support must be made in addition to an application for exclusive possession.

If you and your spouse or partner are having difficulty coming to an agreement about the matrimonial home, then a Calgary divorce lawyer can explain your full range of legal options.

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