What Does Use and Possession Mean In A Divorce Proceeding?

Use and possession applies to the family home and family use personal property.

What is considered the “family home”?

In Maryland, the “family home” is statutorily defined as real property in the State that was (1) used as the principal residence of the parties when they lived together, (2) is owned or leased by one or both of the parties at the time of the divorce proceeding, and (3) is being used or will be used as a principal residence by one or both of the parties and a child.

A “family home” does not include real property that was (1) acquired before marriage, (2) acquired by inheritance or gift from a third party, or (3) excluded by a valid agreement.

What is considered “family use personal property”?

The term “family use personal property” is also statutorily defined in Maryland and refers to anything tangible that is used primarily for family purposes.  It is limited to only property that was acquired during the marriage of the parties.  Examples of family use personal property include cars, furniture and furnishings, household appliances, and electronics.

When is use and possession granted?

The custodial parent of a minor child often requests use and possession of the family home in order to maintain a stable environment for the child.  Maryland courts can exercise its powers to award use and possession to enable any child of the family to continue to live in the environment and community that are familiar to the child, and to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home.  Use and possession under this statute will not be awarded in Maryland if the parties do not have any minor children.

The use and possession statute’s main purpose is to benefit the minor child or children of the family.  A parent’s or spouse’s needs are of no consideration except as those needs contribute to, or reflect upon, the obligation she or he owes to the minor child or children.  The statute is meant to protect the interests of any minor child caught in the cross-fire of a divorce case, with the goal of making certain a child need not suffer the unsettling loss of his or her home during the course of the litigation.

What factors are considered in awarding use and possession?

A Maryland court can consider several factors when determining an award of use and possession.  Generally, the interest of the minor child or children is given the greatest weight.  Other factors include (1) the need of either party to possess and use the family home as a dwelling place, (2) how possession and use would affect either party’s ability to produce income, and (3) whether any party would suffer undue hardship by awarding use and possession.

 How long is the use and possession granted for?

In Maryland, courts can award exclusive use and possession of the family home and family use personal property to a custodial parent for up to three years from the date of divorce.  An award for use and possession may terminate prior to the three years if the party who was granted use and possession remarries.

 When can a Court award use and possession?

The latest point at which a Maryland court has authority to award use and possession of a family home is when the court grants an annulment or divorce.  When a court grants an annulment or an absolute divorce, regardless of how the family home or family use personal property is titled, owned, or leased, the court may (1) decide that one of the parties shall have the sole use and possession of that property, (2) divide the possession and use of the property between the parties, or (3) decline to award use and possession.  A Maryland court can also award use and possession of a family home on an interim basis during the pendency of a divorce action.

The courts will also determine how financial responsibilities related to the family home and family use personal property are allocated, if the parties have not been able to come to an agreement.  The final disposition of the family home and family use personal property will depend on certain factors, including how other marital property was divided in the divorce, if alimony was awarded, and whether a monetary award was granted or is necessary to achieve equitable division.

Navigating the court system in a divorce can be a difficult and stressful process.  If you are considering a divorce or are currently involved in a divorce proceeding, we encourage you to speak to an experienced family law attorney who can assist you in navigating the process from start to finish.

Disclaimer: This blog is informative in nature. The information contained herein is not to be considered legal advice and there is no attorney-client relationship formed between Silverman Thompson and the reader.