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How Custody Considerations can Impact the Sale of a Home in Divorce

For many of our clients, the family home is one of their most valuable assets.

How to deal with the family home – who stays and who goes, whether to sell it, whether one party will buy the other party out – can quickly become a major source of conflict when parties are separating and divorcing.

In addition to all of the financial and logistical considerations our clients face regarding the disposition of their home, they must also contend with how each decision may affect any minor children. Furthermore, the custodial arrangement between two parties, whether agreed upon or Court-ordered, could have a major impact on the disposition of the family home.

What is “use and possession” of the family home?

Maryland law provides for “use and possession” of a family home in order to enable minor children of the family to continue living in the community and environment familiar to them; and to avoid uprooting children from their home, school, and community during and/or following the divorce. The legislative intent behind the use and possession statutes is to provide children with a stable environment during a time of family instability.

Functionally, an award of use and possession acts to delay the ultimate disposition of the family home by up to three years from the date of divorce to allow the children to remain living there. The family home does not have to be jointly-titled; a parent who is not listed on the deed (or lease) of the home can still be granted use and possession. And the Court has the power to allocate between the parties the carrying costs of the family home (think: mortgage, taxes, insurance) during the use and possession period.

There are some limitations, however. Only the parent with primary custody of the minor children is eligible to be granted use and possession of a family home, and the statute requires a showing of the children’s “need” to remain in the home. The Court will consider the financial impact on the family. And some Courts will not grant use and possession to a party who has already vacated the family home – meaning, once a party moves out it becomes difficult to get back in.

Could “use and possession” impact the sale of my family home?

It depends on the facts and circumstances of your case. If you have minor children and one or both parties wishes to remain in the family home, then a claim for use and possession is likely to come up.

When determining a parties’ claim for use and possession, the Court considers many different factors, such as: the ages of the children, what schools the children attend and what grades they are in, how long the children have lived in the neighborhood, and what activities the children participate in. The Court also considers the overall financial picture of the parties as well as where the other parent will reside. The Court’s goal is to ensure, where possible, that the children can remain in a secure and stable environment during an uncertain time.

As with any major life decision, being fully informed is key. Divorce involves decisions regarding custody and assets which can often be related. It is extremely important to understand how all of the decisions you will be faced with in separation and divorce are interconnected, and to consult with a knowledgeable family law attorney before you begin making them.

Casey Florance and Donna Van Scoy are divorce attorneys who handle cases involving domestic relations and family law, including custody and visitation. For more information, contact Casey at cwflorance@lerchearly.com and Donna at devanscoy@lerchearly.com.

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