One of the issues that married spouses who own their home confront in a divorce is who lives in the house during the divorce process. In the Commonwealth of Pennsylvania one or both of the parties can file a Petition for Special Relief asking for sole possession of the family home. The Commonwealth of Pennsylvania 23 Pa. C.S. § 3502(c) gives a Judge the right to award a party the home during the divorce. Laczkowski v. Laczkowski, 344 Pa. Super. 154 (Pa. Super. 1985) is the seminal case in this regard. The facts of the case are as follows. The mother and father lived in the marital residence and sadly, entered the divorce process. They had one minor child. After the filing of the divorce, the relationship of the parties degenerated to the extent that the mother and daughter moved out of the home and into the maternal parents’ home. The mother then filed a Petition for Special Relief in order to get sole possession of the home during the divorce. The Court awarded the mother the home.
The Court used the following factors to make this determination. First, there was testimony that the father was both physically and emotionally abusive during the period that both parties lived in the home. This drove the mother and daughter out of the home. Second the father had the financial capacity to find himself an alternate residence. Clearly the father was better able to move into another abode. Third, the child had significant attachments to the locale and the home. She did not want to move into a different school or have her life change, yet she did not want to remain in the home with the father. So, the Court clearly took the child’s interests into account in making the determination. There is a sense from reading the Decision that the Court found that the best interests of the minor child the most important factor in making its determination.
It should be noted that the Court that made the determination indicated that this sort of award that it was loathe to make and there are other cases where the Court did not award the house to either party. That being said (1) economic factors; (2) minor children and (3) emotional and physical abuse are the major factors in making a determination on this issue.
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