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Use and Possession
Use and possession is a vehicle by which the minor children of a divorce continue to reside in the marital home when it is in the best interests of the children. Its purpose is to allow the child to continue to live in a familiar environment for a few years during the post-divorce time. Therefore, it is only for the benefit of the family’s children and is awarded only to the parent who has physical custody.
An order of use and possession is effective for up to three years starting from the date of the annulment or divorce or until the party with possession remarries, but not longer than three years. For a court to pass a use and possession order, the following requirements must be met:
1. The existence of a marriage between a man and a woman
2. Either party has grounds for a limited or absolute divorce or an annulment
3. There is a child who is awarded custody to either party and
4. The existence of family use property
In awarding a use and possession order, the court can provide ancillary relief to the parties by ordering that either or both parties pay all or any part of any mortgage payment or rents, any indebtedness related to the property, the cost of maintenance, insurance, assessment, and taxes, or any other similar expenses in connection with the property.
An order for use and possession is modifiable as the circumstances require. A loss of custody during the use period is one instance where a modification will occur and therefore terminate the possession and use of the family home and property.
Further Information on Division of Property:
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