Orders for Use and Possession of A Family Home and Family Use Personal Property

• Jurisdiction: Maryland

VI. ORDERS FOR USE AND POSSESSION OF A FAMILY HOME AND FAMILY USE PERSONAL PROPERTY

A. Overview

The Marital Property Act permits a court in a divorce (limited or absolute) or annulment proceeding to grant a party exclusive use and possession of a family home and certain tangible personal property of the parties, known as "family use personal property."⁷⁴⁶ A key requirement is that the spouse granted use and possession have custody of a minor child of the parties. The purpose of such an order is to provide stability, for a period of time, for the parties' minor children. If the court decides not to grant use and possession, the disposition of the property will be determined along with all the other property before the court.⁷⁴⁷

Two other statutory provisions permit an order giving a spouse use and possession of a home to the exclusion of the other spouse. A court may grant use and possession of a home as part of the relief in a domestic violence case. The class of persons who may be entitled to relief under the domestic violence statutes is broader than under the Marital Property Act; parties need not have been married, nor does a party to whom relief is granted need to be a custodial parent.⁷⁴⁸ Other statutory provisions permit a court to grant an injunction to a spouse during a dissolution proceeding that could include exclusive use of a home.⁷⁴⁹

B. Order for Use and Possession under the Marital Property Act-Summary of Key Features

The key features relating to use and possession of a family home and family use personal property under the Marital Property Act, discussed in more detail below, are:

(1) The family home must be the home of a minor child of the parties;

(2) The child must have a need to remain in that home;

(3) The spouse to whom the order is granted must have custody of that child;

(4) The property to which such an order applies must be a family home or family use personal property;

(5) The trial judge may grant a use and possession order during the pendency of a suit for limited or absolute divorce as well as at its conclusion-upon the granting of an annulment or a divorce;

(6) The maximum duration of an award granted at dissolution is three years; however, an award at dissolution can be combined with a pendente lite award such that the actual duration of use and possession can be longer than three years;

(7) An order awarding use and possession may not be considered as evidence of constructive desertion.⁷⁵⁰

The stated purpose of these statutory provisions is to enable a child to remain in an environment and community that are familiar to him or her and to provide for a custodial parent to have continued occupancy of the home and use of the family personal property when a child needs to live in that home.⁷⁵¹

C. Child of the Family and Custody

1. Definition of child

"'Child' means a child: (1) under the age of 18 years; or (2) 18 years old or older and dependent on a parent because of mental or physical infirmity."⁷⁵² The General Assembly has not amended the definition of child in Fam. Law § 8-201(b) to align it with the Code provision extending the age of majority for support purposes to high school graduation or age 19.⁷⁵³ However, in Kelly v. Kelly,⁷⁵⁴ the Appellate Court of Maryland held that if a child will reach age 18 before graduating from high school, the court can treat him or her as a child for purposes of a use and possession order so that the order can terminate when the child attains majority for support purposes, subject to the three-year durational limit.

The child must be a child of the parties by birth or adoption.⁷⁵⁵ A stepchild is not a child for purposes of a use and possession order.⁷⁵⁶ To date the cases have not directly addressed whether a child whose parent-child relationship came about by virtue of marriage to a same-sex spouse who is a birth or adoptive parent is a child for purposes of Fam. Law § 8-201(b)(1). In Connover v. Connover,⁷⁵⁷ the Supreme Court of Maryland adopted the concept of de facto parentage; therefore, once de facto parentage is established, the parent-child relationship should receive the same treatment for purposes of eligibility of either parent for a use and possession order.

2. Award of custody; child's need to remain in the home

Additional prerequisites for the grant of a use and possession order include:

(1) The spouse to whom the order is granted must have custody of a minor child of the parties;

(2) The home must currently be the principal residence of the custodial parent and the child or will be used for that purpose; and

(3) The court must make a finding that the child has a need to live in the family home.

All of these requirements must be satisfied.⁷⁵⁸

The spouse to whom a use and possession order is granted need not have custody of all of the children of the family. For example, in Kennedy v. Kennedy,⁷⁵⁹ the court granted use and possession to a mother who was granted custody of one of three minor children, the father being awarded custody of the other two children.

Once a court grants a parent custody of a child, it may enter a use and possession order that ousts the other parent from the home.⁷⁶⁰ For example, in Broseus v. Broseus,⁷⁶¹ the husband left the family home with the minor child, got a pendente lite order for custody, and then sought and received a use and possession order that required the wife to leave the home.

D. Definition of Family Home and Family Use Property

1. Family home defined

"Family home" means the property in this State that: (i) was used as the principal residence of the parties when they lived together; (ii) is owned or leased by 1 or both of the parties at the time of the proceedings; and (iii) is being used or will be used as a principal residence by 1 or both of the parties and a child.⁷⁶²

To qualify as a family home, the property does not have to be owned by either party; a leased home or apartment can qualify.⁷⁶³ Read literally, the statute requires that it must have been a shared residence of the parties. However, in Maness v. Sawyer,⁷⁶⁴ the Appellate Court of Maryland took a common-sense approach, holding that the jointly owned home fit the definition of family home for purposes of a use and possession award. The parties had bought the home with the intention of using it as a family home although they never lived there together as a family. Rather, at certain times the husband lived there alone, and at others the wife lived there with the children. The appellate court considered the legislative purpose for use and possession orders, as expressed in Fam. Law § 8-206, that is, to provide for the needs of children to remain in their community and environment. It observed that the language of Fam. Law § 8-201(c)(1) describing the home as "the principal residence of the parties when they lived together" was merely intended as a way to identify what is the primary home for most people and that the General Assembly did not intend to make both parents and children living together in that home a necessary requirement to identify it as a family home. Importantly, it observed, albeit in dicta, that a home could be a principal residence of the parties when a spouse is absent from home due to the demands of employment, military deployment, hospitalization, or other circumstances. In Court v. Court,⁷⁶⁵ the Appellate Court of Maryland upheld a use and possession order when the wife and children had been out of the home for four years, living in temporary, less expensive quarters, necessitated by the husband's decision to sail around the world.

When parties own more than one home, there could be a dispute about which home was the principal residence of the parties. For example, in K.B. v. D.B.,⁷⁶⁶ the parties and minor child lived in a home in Annapolis for several years, then spent about six months in a home in New Hampshire, after which the wife returned to the Maryland home with the parties' child. The parties disagreed about whether they intended to make New Hampshire a new primary residence and there was conflicting evidence supporting each party's position. However, the trial court did not err in finding that the New Hampshire home was the last place the parties resided together. Therefore, the trial judge could treat it as the principal residence, albeit for purposes of allowing a spousal buyout and not for a use and possession order.⁷⁶⁷

The definition of family home excludes property generally defined as separate property for purposes of disposition of property at divorce or annulment. Fam. Law § 8-201(c)(2). provides:

"Family home" does not include property: (i) acquired before the marriage; (ii) acquired by inheritance or gift from a third party; or (iii) excluded by valid agreement.

In defining what is not marital property, Fam. Law § 8-201(e)(3)(iv) also excludes any "property directly traceable to any of these sources." Section § 8-201(c), quoted above, by contrast, omits the directly traceable language in defining what is, and what is not, a family home. Thus, a solely titled home of the parties acquired by gift or inheritance cannot be the subject of a use and possession order; but it appears that a solely titled home purchased during the marriage with gifted or inherited funds can be.

In Hughes v. Hughes,⁷⁶⁸ the husband purchased property prior to the marriage, but made mortgage payments and improvements during the marriage. The property was titled solely in his name. In upholding the use and possession award to the wife, the custodial parent, the Appellate Court of Maryland had to determine the meaning of "acquired before the marriage" for the specific purpose of applying Fam. Law § 8-201(c) (2)(i). In doing so, it considered the legislative purpose, as expressed in Fam. Law § 8-206, to provide continuity for children. It rejected the rigid "inception of title" and the "source of funds" theories; instead it defined the term acquired as it is understood in its common usage (i.e...