Counsel who practice in the area of litigated divorce acknowledge that one of the early issues to be decided is which party will have pendente lite exclusive use and occupancy of the marital residence. If the parties are unable to come to an agreement concerning that issue, a motion and hearing eventuates, leading to the decision on exclusive use and occupancy being made by the court. If the request for exclusive use and occupancy is not granted, both parties may remain in the marital residence, which is likely emotionally difficult. As discussed below, an arrangement known as the sleep divorce may provide helpful temporary relief.

The criteria for deciding which party will have exclusive use and occupancy of the marital residence has evolved over time. Monroe County Supreme Court Judge Dollinger, in the case of L.M.L v. H.T.N, 57 Misc.3d 1207(A), 68 N.Y.S.3D 379, (Table), 2017 WL 4507541, provided a thorough chronology of the exclusive use and occupancy evolution. Dollinger related that DRL §234, which gives the court discretion in determining exclusive use and occupancy, was derived from §1164-a of the former Civil Practice Act.