Legal Blog

Who Gets to Stay in the Marital Residence? Or is Possession Really 9/10’s of the Law?

The division of the property. The destruction of the family. A broken house.There is an old adage that dates back to 17th century England – one that you are probably familiar with – that says: “Possession is 9/10’s of the law”.  That means that if you are in possession of a property, it is presumed that you own the property and have a superior claim to that property.  That saying is not legally correct, but it does acknowledge how important possessing property can be.

Whoever has possession of the marital residence following separation can be very important to a party for a myriad of reasons.  It may be the only option for housing.  There may be sentimental value attached the marital residence. The party seeking possession may be in a better financial position to keep up and maintain the propriety in good condition.  The party is seeking primary custody of the children and wish to avoid uprooting the children from their home.

In most family law cases, the issue of which spouse remains in possession of the marital residence following a separation ends up as a non-issue, as the parties are able to come to a consensus. But what happens if neither spouse is willing to move out of the marital residence. How do you legally get the other spouse out of the house?

You can bring a claim for a “divorce from bed and board” under Gen.Stat. 50-7 against your spouse.  Otherwise known as a “divorce mensa et thoro”, it is a judicially mandated and sanctioned physical separation of the spouses.  If you prevail, the court enters an order granting you a divorce from bed and board.

To be entitled to this remedy, you have to allege and prove that your spouse has committed one or more of the fault grounds listed in the statute.  These grounds include:

  1. Abandonment of the family
  2. Maliciously turning the innocent spouse out of doors
  3. Endangering the life of the innocent spouse by cruel or barbarous treatment
  4. Offering indignities to the innocent spouse so as to render his/her condition intolerable and his/her life burdensome
  5. Being an excessive user of alcohol or drugs so as to render the innocent spouse’s condition intolerable and his/her life burdensome

Failure to prove that your spouse committed at least one of the statutory fault grounds will result in the court denying you the order.

Also, the innocent spouse must not have committed marital misconduct and there must be no evidence of provocation on the part of the innocent spouse.

If the court finds that sufficient evidence has been tendered, the court will grant a divorce from bed and board to the prevailing party.  The statute does not contain what remedies are available for the divorce from bed and board.  Typically, child and spousal support claims are asserted along with the divorce from bed and board claims.  Under North Carolina law, the court has the power to transfer possession of real property as part of the support due to a dependent spouse and/or minor children.  The residence will be sequestered for the exclusive use and possession of the prevailing party. The Order should provide for the losing party to vacate or be evicted from the marital residence by a certain date.

The downside of a divorce from bed and board is that it could take weeks or months before you get to trial.  In the meantime, you and your spouse are still living together under the same roof.

Possession of the marital residence as a result of the divorce from bed and board does not guarantee that the marital residence will be distributed to you in equitable distribution.  In other words, possession Is not 9/10’s of the law. You will need to pursue your ED claim in order to obtain legal title to the marital residence.

Offit Kurman has over 250 attorneys who are situated in 8 states and the District of Columbia, providing services nationwide. Offit Kurman’s family law attorneys are experienced and knowledgeable and are available to assist you.




Beth Hodges’ practice is devoted exclusively to family law.  Ms. Hodges’ cases involve the litigation, negotiation, and settlement of simple as well as complex financial and non-financial issues and disputes.








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