Use and Possession of the Family Home in a Maryland Divorce

Who gets the house during and after the divorce?

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Gavel and Scales

For many divorcing couples, deciding what to do with the family home is a source of stress and conflict. In most marriages, real estate is the most significant asset, which can cause a variety of complications. Many people feel a deep emotional attachment to their homes, which can delay settlement efforts if both sides wish to remain in the house. If they have young children, they may want to continue living in the family home to provide the kids with a sense of stability after the divorce.

If you plan to keep the house after your divorce, there are several things you should consider, from the financial impact of supporting a household on your own, to understanding how child custody can impact your right to remain in the home. This article takes a look at the use and possession of the family home in Maryland and some of the scenarios you might encounter.

How Property is Divided in Maryland

Maryland is an “equitable distribution” state, which means that it divides property according to each side’s financial need. The vast majority of states follow the equitable distribution rule and use a variety of factors to determine how property should be awarded to each party in a divorce. Some things Maryland courts consider include the duration of the marriage, the physical and mental condition of each party, their economic circumstances, and their ages. Equitable distribution doesn’t always result in property being divided equally. In some cases, the court might award more property to one spouse over the other.

Under equitable distribution rules, only “marital property” is included in the property that gets divided. In Maryland, “marital property” includes all the assets the husband and wife acquired during the marriage. Gifts, inheritances, and things owned prior to the marriage are considered “separate property” and not part of the marital property. Maryland also permits married couples to designate certain property as “separate” by entering into a written agreement.

Unlike other equitable distribution states, Maryland makes a special exception for real estate a person owned before he or she got married. If you owned a house prior to your marriage but added your spouse to the title later on, Maryland law automatically designates the property as a marital asset.

Keeping the Family Home if You Have Children

Courts in Maryland can give one spouse the exclusive right to live in the family home for up to three years after the divorce. Under certain circumstances, the court might also award one side the exclusive use of personal property like household furniture and the family car. The home must have been the parties’ main residence while they were married, be owned or leased by one of the parties, and be used by one of the parties and at least one child as a residence after the divorce. The parent living in the family home doesn’t need to have custody of all the couple’s children, but he or she must be designated custodial parent of at least one child, not including a stepchild.

The court considers many factors in determining whether to give one parent the right to use the family home, including the best interest of the child, whether the arrangement will create financial hardship for the other spouse, and if either party uses the residence for business purposes. Unless the parties agree otherwise, exclusive use and possession orders terminate if the spouse living in the family home gets remarried or when the youngest child living in the house turns eighteen.

Before you decide to stay in the home, you should make sure you can afford it. For most people, a divorce means adjusting to a more conservative standard of living once all the assets are divided and two incomes are suddenly reduced to one. While it’s normal to feel emotionally attached to the family home and the memories associated with it, it is best to examine your financial reality before the divorce is final and determine if you can truly handle the mortgage and maintenance costs on your own.

Exclusive Possession of the Home in Cases of Abuse

Maryland law gives courts the authority to order a spouse to leave the family home for up to one year by issuing a protective order in domestic violence situations. If you are a victim of abuse or have reason to believe your spouse is likely to cause you imminent injury, get help.

You can file an "Application for a Temporary Protection Order," which is usually scheduled for hearing the same day. Due to the urgency of the situation, the hearing goes forward without the other spouse being present or even aware of the hearing. If the court grants the temporary order, the case moves on to the "Final Protective Order" stage, which is scheduled for a hearing within seven days. At the final hearing, you should be prepared to present evidence to support your claim. If the court rules in your favor, it can grant you exclusive use and possession of the family home for up to one year. Domestic violence is a serious allegation, however, and should never be used as way of gaining leverage in a divorce case.

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