In the often-challenging time of a divorce, questions surrounding who remains in the family home can be both emotional and complex. In Maryland, a legal concept called “use and possession” can come into play to address these concerns. Understanding what use and possession means and how it might apply to your situation is crucial for determining where each spouse will live during and after the divorce process, especially when children are involved.

What Does Use and Possession Mean in a Divorce?

Use and possession, in the context of a Maryland divorce, refers to a court order that allows one spouse to retain temporary rights to the family home (a home owned or leased by one or both spouses, and in which they lived during the marriage) typically to ensure stability for children. This order grants exclusive access and control over the home and can also include family-use property such as furniture, appliances, and vehicles. It does not, however, 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). While it’s not a permanent solution, it provides the spouse with use and possession rights to live in and maintain the family home without interference from the other spouse. This arrangement is often time-limited and intended to give families time to adjust to their new routines.

Who Qualifies for Use and Possession of the Marital Home?

In Maryland, use and possession orders are reserved for situations where minor children are involved. The purpose is to ensure that the children maintain as much stability as possible despite the divorce. Generally, the spouse who serves as the primary caregiver may be granted use and possession, though every situation is unique. Maryland courts consider several factors before issuing a use and possession order, such as the financial circumstances of each spouse, the best interests of the children, and the practicality of maintaining the marital home as a stable environment for the children.

How Long Does Use and Possession Last?

A use and possession order is not intended to last indefinitely. In Maryland, use and possession rights can typically be granted for up to three years after the divorce is filed, depending on the circumstances (for example, if the spouse with use and possession remarries, use and possession ends). This duration allows time for the family to transition to new living arrangements and may help the primary caregiver secure a permanent residence. After this period, the use and possession order expires, and the home may be sold, transferred, or otherwise handled according to the terms outlined in the divorce decree or property settlement agreement.

How Does Use and Possession of the Family Home Affect Property Division?

While use and possession allows one spouse to stay in the family home, it doesn’t change the ownership of the property itself. Regardless of who stays in the home under a use and possession order, the marital home remains an asset that will eventually be divided during the property division process. A use and possession order simply provides a temporary solution for stability; it does not give permanent ownership rights to the spouse who remains in the home. When the use and possession period ends, the marital home may be sold, or one spouse may decide to buy out the other’s interest.

Does Use and Possession Include Other Types of Property?

Yes, use and possession orders often extend beyond the family home and can include other essential marital property, such as furniture and household appliances. These items are considered part of the family home and are included in the order to ensure that the spouse remaining in the house has the resources needed to maintain a comfortable, satisfactory environment for the children. The goal is to help preserve a sense of continuity in the children’s lives, providing them with familiar surroundings and essential household items as they adjust to the changes brought on by divorce.

How Does a Use and Possession Order Impact Child Custody?

In many cases, the use and possession order supports child custody arrangements by providing a secure, consistent living environment for children during a difficult time. Courts recognize the importance of routine and familiarity for children, especially in times of family transition. If one parent has primary physical custody or serves as the primary caregiver, the court may be more likely to grant that parent use and possession of the family home to avoid disrupting the children’s daily lives. However, this decision is part of a larger custody determination, where the court considers the best interests of the children.

What if Both Spouses Want to Stay in the Family Home?

If both spouses wish to remain in the family home, the court will consider a range of factors to determine who should have use and possession rights. This may include each spouse’s financial situation, the children’s needs, and any existing custody arrangements. In some cases, spouses may also come to an agreement outside of court (via mediation) that outlines who will stay in the home, under what conditions, and for how long. Open communication and compromise can sometimes lead to a solution that works for both parties and minimizes the stress of court intervention, although this is not a substitute for representation by a skilled attorney.

Can Use and Possession Orders Be Modified?

While use and possession orders are meant to provide a stable living arrangement during the transition period, life circumstances tend to change. In certain situations, it may be possible to modify a use and possession order. For instance, if the financial situation of one spouse significantly changes, or if the children’s needs evolve, either spouse may be able to petition the court for a modification. However, modifications to use and possession orders aren’t granted lightly; the court will require compelling reasons to adjust the order to ensure the family’s best interests remain the focus.

What Happens to the Family Home After Use and Possession Ends?

When the use and possession order expires, the family home usually becomes part of the property division process if it hasn’t already been addressed. This means that the home may be sold, with the proceeds divided between both spouses, or one spouse may choose to buy out the other’s share.
Each family’s situation is unique, and the eventual outcome for the family home will depend on what is in each spouse’s and the children’s best interests, as well as the financial circumstances of each party.

Is Use and Possession the Right Option for Your Divorce?

Deciding whether to pursue a use and possession order can be a tough decision, influenced by financial, emotional, and practical considerations. This option can provide valuable stability for children and allow time to adjust to new living arrangements, but it’s not the right fit for every family.

​​Right now, use and possession is more challenging than ever because of today’s high mortgage interest rates. Many families are locked into low rates on their existing home, but if one spouse needs to purchase a new home, they’re likely facing a significantly higher interest rate. This reality complicates the question of who should leave the family home. For many, the financial impact of buying a new property at today’s rates may not be feasible. Deciding who should stay in the home – and how to make it financially workable for both spouses – has become a tougher call and often requires thoughtful negotiation and careful planning.

If you're facing these questions in your divorce, a seasoned family attorney like Lindsay Parvis can help guide you through your options, helping you weigh the financial implications and find a solution that supports your family’s needs and future.

Contact Lindsay Parvis Today to Discuss Use and Possession in Your Divorce

Navigating the use and possession process can be daunting, especially when the decision will impact your family’s living situation and day-to-day life. Whether you’re seeking use and possession of your family home or looking to negotiate a fair living arrangement, having compassionate and skilled representation is critical.

Lindsay Parvis is a dedicated family law attorney with over 20 years of experience handling complicated divorce issues, including use and possession matters in Maryland. Lindsay can help you understand your rights, work through the legal complexities, and reach a solution that supports your family’s best interests. With her deep understanding of Maryland family law and unwavering commitment to her clients, Lindsay will work with you to achieve a fair and comfortable arrangement. Contact Lindsay today for your consultation, and ensure your future is protected post-divorce.

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