7.5.3 Injunctions and Incidental Orders

La. R.S. 9:374 addresses use and occupancy of a shared residence in divorce. Under this statute, the court can award use and occupancy only after the filing of a divorce (or a separation of property in the case of community property) and a contradictory hearing.

Where the family residence is community property, either spouse may petition for use and occupancy. The court may award use and occupancy pending partition of the community property or further orders, whichever occurs first.1     

Where the family residence is the separate property of either spouse, the spouse who has physical custody or who has been awarded temporary custody of the minor children of the marriage may petition for use and occupancy. After a contradictory hearing, the court may award the use and occupancy of the family residence and use of community movables or immovables pending partition of the community property or until 180 days after termination of the marriage, whichever occurs first.2

Courts should award use and occupancy based upon the best interest of the family, and, in doing so, must consider the relative economic status of the parties and the needs of the children.3  Ordinarily, occupancy by the spouse who has custody of children is in the best interest of the family.4  In cases involving a “history of family violence,” victims should have a strong case for occupancy of the marital residence because Louisiana custody laws require, in general, that they be awarded sole custody.5

Use of La. R.S. 9:374 raises issues regarding rent reimbursement. Be prepared to address this issue if requesting use and occupancy under that statute. The non-occupant spouse may file a motion for rent at any time, but rent cannot be awarded retroactively unless the issue was explicitly deferred by court order or agreement of the parties at the time exclusive possession was determined.6  The trial court has discretion to determine whether rent reimbursement should be awarded to the non-occupant spouse, and the law provides little guidance regarding what factors to consider.7  At least one Louisiana court of appeal has upheld the denial of a rent reimbursement claim where the trial court considered, in part, the non-occupant claimant’s history of domestic abuse against his spouse.8

• 1La. R.S. 9:374(B).
• 2La. R.S. 9:374(A).
• 3Id.
• 4Bergmann v. Nguyen, 2021-0553 (La. App. 4 Cir. 4/27/22), 2022 WL 1238232, writ denied, 2022-01075 (La. 10/18/22), 348 So. 3d 725; Burrell v. Burrell, 437 So. 2d 354, 356 (La. App. 4 Cir. 1983).
• 5La. R.S. 9:364.
• 6La. R.S. 9:374(D).
• 7Luzhen Zheng v. Hui Wu Lin, 19-84 (La. App. 5 Cir. 10/2/19), 282 So. 3d 337 (citing Richard v. Richard, 95-1536 (La. App. 4 Cir. 2/15/96), 669 So. 2d 1267, 1269–70).
• 8Id.