In that circumstance, a judge has the power to award one of the spouses “use and possession” of the house. This order makes the question of who moves out in a separation a bit simpler. The purpose of this action is to help spouses recuperate after the divorce, get back on their feet, and allow the children to remain in a familiar place during these often turbulent times.
If the court orders exclusive use and possession of the family home to you, that means you can live in the family home with your minor children. A court may also order the other spouse to pay the mortgage on the house.
By law, a use and possession order can go on no longer than three years after the date of divorce. But that could be five years from now. It’s also important to remember that these orders aren’t always granted to mothers. Whoever is the primary custodian of the children – whether that is the mother or the father – will most likely be awarded the home.
Use and possession is something that is often negotiated by lawyers as part of a marital separation agreement. Negotiations may include whether or not there will be a use and possession order, and if so, what its duration will be.
In addition to the family home, a judge may issue a “family use personal property” order. This order is pretty straightforward; whoever has custody of the children and receives the order may keep anything that is owned by one or both spouses. However, the court cannot grant use and possession of property if the item was acquired before the marriage. These items may include:
- vehicles
- furniture
- appliances
- other property