Uprooting children from the place they have grown up in is something most parents want to avoid. As such, one of the first concerns many parents have during a divorce is whether they and their kids can stay in the family home.
Maryland gives courts the authority to issue a use and possession order, which allows the custodial parent and children to remain in the family home for up to three years after a divorce is finalized. The order centers on one principle: the best interests of the child.
Does your home qualify for a use and possession order?
Not every home is eligible for a use and possession order. Under Maryland law, the property must first qualify as a “family home” and meet the following criteria:
- It was the primary residence of both spouses while they lived together
- At least one spouse currently owns or leases the property
- At least one parent and a child is living or will continue to live there
Your home will not qualify for a use and possession order if it is separate property. This means your home is not eligible if you or your co-parent acquired it before marriage, received it as a gift or inheritance, or signed a valid prenuptial or postnuptial agreement that specifically excludes it from the marital estate.
How long can you stay under the order?
A custodial parent and their child can potentially remain in the family home for up to three years from the date the court grants an absolute divorce. The order may also end ahead of the three-year time limit if the custodial parent remarries, the youngest child turns 18, or both parties agree to sell the home.
If you need immediate stability for your children while the divorce process is still ongoing, you can request a temporary Pendente Lite order. This temporary protection can transition into a full use and possession order after the court finalizes the divorce.
Does the order only apply to the family home?
A use and possession order can cover any “family use personal property”, provided that it is marital property. This includes items such as vehicles, furniture and appliances. The court also has the authority to assign household expenses — including the mortgage, property taxes, insurance and maintenance — to either spouse, regardless of who lives in the home.
Get the answers you need
A use and possession order can provide real stability for your children as you prepare to end your marriage. If you think it may apply to your situation, consider seeking professional legal counsel. An attorney can help you understand whether you qualify and what to expect from the process.