Use and Possession of the Family Home in Divorce

If you or your spouse has filed for divorce, one of the many things on your mind may be figuring out where you will live. This is especially true if you have children and want to provide some continuity. If you are going through a divorce in Maryland and are the custodial parent of a child you share with your spouse, you can request use and possession of the family home or family use personal property. Although it is temporary, use and possession of the family home can make the transition easier for children.

Family Home

Under MD Code, Family Law §8-201(c), “Family home” means property in Maryland that:

• was used as the principal residence of the parties when they lived together;
• is owned or leased by 1 or both of the parties at the time of the proceeding; and
• is being used or will be used as a principal residence by 1 or both of the parties and a child.

However, the family home does not include property acquired before the marriage, acquired by inheritance or gift from a third party, or excluded by valid agreement (such as a valid prenuptial or postnuptial agreement).

Family Use Personal Property

Under MD Code, Family Law §8-201(d), “Family use personal property” means tangible personal property:

• acquired during the marriage;
• owned by 1 or both of the parties; and
• used primarily for family purposes.

This type of property includes:

• motor vehicles;
• furniture;
• furnishings; and
• household appliances.

Family use personal property does not include property acquired by inheritance or gift from a third party, or excluded by valid agreement (such as a valid prenuptial or postnuptial agreement)

Factors Considered for Temporary Use and Possession

Use and possession of the family home and/or family use personal property can be awarded as part of the court’s divorce or annulment order, or on a pendente lite basis (meaning during the pendency of the divorce case). 

In making this determination, the court must consider the following factors laid out in MD Code Family Law §8-208(b):

1. the best interests of any child;
2. the interest of each party in continuing (i) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it as a dwelling place; or (ii) to use the family use personal property or any part of it, or to occupy or use the family home or any part of it for the production of income; and
3. any hardship imposed on the party whose interest in the family home or family use personal property is infringed on by an order issued under §§ 8-207 through 8-213 of this subtitle.

The court will also allocate how financial responsibilities with regard to the property shall be shared, if the parties have not already come to an agreement. The ultimate disposition of the family home and family use personal property will depend on many factors, including how other marital property is divided between the parties, if alimony is awarded, and whether any monetary award is necessary to achieve equitable division.

Limitations on Use and Possession

Per MD Code Family Law §8-210, there are certain limitations on court orders awarding use and possession of the family home and family use personal property.

Time Limitation

Orders awarding use and possession must terminate no later than 3 years after the court grants an annulment or a limited or absolute divorce.

Remarriage

When the party with possession or use of property remarries, provisions of a court order concerning the family home or family use personal property shall terminate.

The court can set other terms and conditions on use and possession based on the circumstances of the case. Once an order granting use and possession terminates, the property is typically treated as ordinary marital property and divided accordingly.

Contact an Experienced Divorce Attorney

For years, Bethany Shechtel, Esquire has guided clients through divorce and child custody matters. If you have questions about the divorce process or any other family law issue, contact BGS Law, LLC today for assistance.