From JD Supra: Currently, when a spouse seeks an order granting temporary “exclusive use and occupancy” of a marital home which results in the physical separation of the parents during the divorce, as a general matter (excluding cases involving alarming threats of harm/extreme emotional abuse) there must be competent proof of physical violence or damage to property to justify it. Failing that, if one spouse has secured an alternative residence and his/her return to the home would cause strife, the exclusive use remedy may also be available.

A narrow view towards domestic violence can lead to this litmus test: Does the spouse seeking the remedy have a black eye, or something equivalent? If not, then parents may remain stuck under the same roof for the duration of the divorce proceedings, together with their children, regardless of how untenable a living situation exists. This restrictive definition of domestic violence is quite obsolete as it ignores the corrosive concept of coercive control between divorcing spouses. Coercive control is psychological abuse in all its forms—using finances to control the victim, isolation, verbal putdowns and the like, or other non-physical (but still oppressive) behaviors.

Coercive control is a core principle of domestic violence and is a destructive form of it. Yet this well-established concept, embraced by other states in various legal proceedings, has barely dented New York’s jurisprudence.

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