In a Maryland divorce proceeding, the Court has the power to award limited property rights to parties, even if one spouse has sole title to the property. This power is called an Order of “use and possession.” An Order of “use and possession” allows a child and a custodial parent to remain in the family home, and use the property contained in the family home, during the separation and up to three (3) years after the divorce. To obtain an Order of “use and possession”, very specific criteria must be met, as described below:
- “Use and possession” is only available in limited or absolute divorce proceedings. If the parties were never married, but shared a residence, “use and possession” is not applicable.
- To qualify for “use and possession” of a home, the property must meet the definition of a “family home” as codified by Maryland law. A “family home” must have been:
- Used as the principal residence of the parties during their marriage;
- Owned or leased by one or both parties at the time of the divorce proceeding;
- And is being used, or will be used, by a child or one or both parties as a principal residence. “Use and possession” does not apply to rental properties or properties acquired after the separation, because those are not the principal residence of the parties during their marriage.
- To obtain “use and possession” of the family use personal property, the property must have been used primarily for family purposes. Family use property includes household appliances, furniture, furnishings and vehicles acquired during the marriage, regardless of title.
- Any property (home or personal) that was acquired prior to the marriage, acquired by inheritance or gift by a third party, or excluded by a valid agreement is not subject to a “use and possession” Order.
- “Use and possession” can be ordered during the pendency of the divorce proceedings and for up to three (3) years from the date of divorce. After the “use and possession” period expires, the property must be dealt with by Court Order and either sold or transferred.
The primary purpose of “use and possession” is to allow a child to continue to live in a familiar environment and community if there is a need for that child to do so. For example, the need may be related to the school that the child is currently enrolled or a special need that the child has for which the home is outfitted. The Court must balance the need to remain in the home and use the property, as well as the best interests of the child, with any hardship imposed on the party whose interest is being infringed upon with a “use and possession” order.
If “use and possession” is granted, the Court may also order that one or both parties contribute towards the mortgage or rent payments, any indebtedness related to the property, the cost of maintenance, insurance, assessments or taxes or any similar expenses related to the property.
If you have any questions about “use and possession” or family law, please contact us.
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