Understanding Use and Possession or Exclusive Use in Family Law
When families go through divorce or separation, one of the many issues that must be addressed is the use and possession of property, particularly the family home. Here's a simple breakdown of what "use and possession" or “exclusive use” means in family law, how it is applied, and what happens afterward.
What is “Use and Possession” or “Exclusive Use”?
In family law, the term “use and possession” or “exclusive use” means that one party is allowed to temporarily stay in a property, even if it is owned by both parties or titled solely to the other party. This temporary period granted by the court can last for the pendency of the divorce proceeding (in D.C. or MD) or for a period following the divorce (in MD).
Maryland
How Does the Court Award Use and Possession?
To decide who gets to live in the family home, the court looks at the following factors:
The best interests of any child;
The interest of each parent in continuing to live the family home; and
Any hardship the parent would experience if they cannot stay in the family home.
For a parent to be entitled to the use and possession of the family home, the spouse or parent must have custody of a child under the age of 18.
The court may choose to have either or both parents pay all or any part of:
Any mortgage payments or rent;
Any debt related to the home;
The cost of maintenance, insurance, assessments, and taxes, or any similar expenses related to the home.
How Long Can Use and Possession Last?
Maryland law permits a parent the use and possess a home for up to 3 years post-divorce or post-annulment. However, the order granting the temporary rights to the home will end if the minor child becomes emancipated before the 3-year limit or the parent with the right remarries.
What Happens After the Use and Possession Order Ends?
When the use and possession order of the home ends, the court may order the property to be sold, and have proceeds divided among the parties, or one party may buy out the other's share of the home, depending on the circumstances of the case and the property at issue.
D.C.
How Does the Court Award Exclusive Use?
In D.C., the law uses the phrase “exclusive use” instead of “use and possession.” During a proceeding for legal separation, divorce, or termination of a domestic partnership, a party can ask the court for exclusive use of the marital home or other real property. The court may make this decision if, based on the consideration of factors, it is determined to be just, equitable, and reasonable.
How Long Can Exclusive Use Last?
D.C. law states that a court can give exclusive use of a marital home or residential property to a party during the pendency of the litigation, even if it is not owned by that party. So, until the court issues a divorce or other order disposing of the property issues at the conclusion of the case, the party with exclusive use may remain in the home.
What Happens After the Exclusive Use Order Ends?
At the end of the litigation case, the court may order a property transferred to one party or another, or the property may be sold.
Understanding potential claims for “use and possession” or “exclusive use” in a family matter can protect parties and help them to prepare for all potential outcomes. Our attorneys are experienced in matters involving use and possession/exclusive use orders. Contact our office at 240-396-4373 to schedule a consultation.
