Maryland

Use and Possession of the Family Home in Maryland

Use and possession is a court decision under Maryland Family Law Article section 8-208. The court decides that one spouse has sole possession and use of the family home, or divides possession and use between the spouses. The statute lists no fixed maximum period. Ask your attorney how it applies to your case.

By Marc Cormier

Licenses: Maryland #620443 | Virginia #0225175181 | DC #SP98365998 | Berkshire Hathaway HomeServices

27+ years in real estate. 800+ closed transactions.

Certified as a Certified Divorce Real Estate Expert (CDRE) in 2014.

Last updated: October 2, 2026

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What is use and possession of the family home in Maryland?

Use and possession is a decision by the court about who lives in the family home and who uses it. Maryland Family Law Article section 8-208 gives the court that authority.

Under section 8-208(a)(1), the court decides that one spouse has sole possession and use of the family home, or it divides possession and use between the spouses. It does this regardless of how the home is titled, owned, or leased.

Maryland Family Law Article section 8-201 defines a family home. It is property used as the principal residence, owned or leased by the spouses, and occupied by them with a child.

What does Maryland Family Law Article section 8-208 say?

Section 8-208 has five parts that matter to a homeowner. The summary below follows the statute text read on October 2, 2026.

Section 8-208(a)(1). When the court grants an annulment or a limited or absolute divorce, the court decides that one party has sole possession and use of the family home and family use personal property, or divides possession and use between the parties. Titling does not matter.
Section 8-208(a)(2). The court exercises these powers pendente lite. That means while the case is pending.
Section 8-208(b). The court considers the best interests of any child. It considers each party's interest in continuing to use the property as a dwelling or for production of income. It considers any hardship imposed on the party whose interest is infringed.
Section 8-208(c). The court is allowed to order either or both parties to pay the mortgage or rent, related indebtedness, maintenance, insurance, assessments, taxes, or similar expenses.
Section 8-208(d). An order granting sole possession does not affect the other party's right to claim the family home as a principal residence for tax purposes.

The statute text lists no fixed maximum period. Your attorney explains how the statute applies to your case.

How long does use and possession last?

Section 8-208 lists no fixed maximum period. The text names no number of months or years.

Some websites quote a number of years. Do not plan around a number you read online. Ask your attorney what applies to your case.

Plan around a date you write down. An order or an agreement with no end date turns a short stay into a long one. This is where people usually get hurt.

Do children change the answer?

Yes. Section 8-208(b)(1) tells the court to consider the best interests of any child. Section 8-201 also defines a family home as a residence the spouses occupy with a child.

Children bring school, routine, and stability into the decision. I see the pull of that on every divorce file with children. The pull is real. The mortgage payment is real too.

The court also considers each spouse's interest in continuing to use the home as a dwelling and any hardship to the spouse whose interest is infringed. How those factors apply when no child lives in the home is a question for your attorney. Do not assume you qualify because you want to stay.

What does section 8-208 change and not change?

Section 8-208 speaks to possession and use. It does not say the order moves ownership. Transfer of an interest in a jointly owned principal residence is a separate tool in section 8-205(a)(2)(iii).

Item	What the statute says	What to do
Who lives in and uses the home	The court decides sole possession and use, or divides it, regardless of title. Section 8-208(a)(1).	Read the order. Write down move dates.
Ownership of the house	Section 8-208 does not transfer title. Section 8-205(a)(2)(iii) is the transfer tool.	Ask your attorney whether any deed change is part of your case.
Mortgage, taxes, insurance, repairs	The court is allowed to order either or both parties to pay. Section 8-208(c).	Put the payment rule in the order or your agreement.
Your loan contract with the lender	The statute text does not address it.	Ask your lender.
Tax claim to the home as a principal residence	An order of sole possession does not affect the other party's right to claim it. Section 8-208(d).	Ask your CPA how it applies to your return.
The right to sell	The statute text does not address it.	Read the order. Ask your attorney before you list.

What this means for your house

Staying in the house is not the same as owning more of it.
The court is allowed to decide possession and use while the case is pending, not only at the end. Section 8-208(a)(2).
The court is allowed to order who pays the mortgage, taxes, insurance, and similar costs. Section 8-208(c).
Get an end date or end triggers in writing before anyone moves. The statute sets none.
Section 8-208(d) says sole possession does not affect the other party's tax right to claim the home as a principal residence. Ask your CPA how it fits your return.

Who pays the mortgage, taxes, and repairs during use and possession?

The order or your written agreement decides. Section 8-208(c) lets the court order either or both parties to pay the mortgage or rent, related indebtedness, maintenance, insurance, assessments, taxes, or similar expenses.

Run the carrying cost before you agree to anything. Here is a worked example with made-up numbers.

Assume the order runs 18 months. Monthly carrying cost is $3,500.

Line	Monthly	18 months
Mortgage payment (principal and interest)	$2,300	$41,400 ($2,300 x 18)
Property tax	$600	$10,800 ($600 x 18)
Homeowner's insurance	$175	$3,150 ($175 x 18)
Repair reserve	$425	$7,650 ($425 x 18)
Total	$3,500	$63,000 ($3,500 x 18)

Now see who bears the $63,000 under two written rules.

Rule in the agreement	Spouse who stays	Spouse who leaves
Split the carrying cost evenly ($63,000 divided by 2)	$31,500	$31,500
The spouse who stays pays all of it	$63,000	$0

Under the second rule, the spouse who stays pays $63,000 over 18 months. Decide in writing whether that spouse is repaid from the sale proceeds. Ask your attorney to word the rule.

Write down a repair rule too. Pick a dollar amount above which both spouses approve the repair. A failed roof or furnace does not wait for a court date.

What is the exit plan?

The exit plan is the written answer to one question: what happens to the house when the order ends. Write it before the order starts.

Set an end date or end triggers in the agreement. The statute sets none.
Pick the path at the end: sell, buy out, or extend by written agreement.
Run the buyout math now. If one spouse keeps the house, the lender decides if that spouse qualifies alone. See "How to Buy Out Your Spouse's Share of the House."
Name a backup sale date in case the refinance fails.
Agree on who lists the house, the price floor, and the repair cap.
Run a net sheet before the end date.

For a jointly owned home used as the principal residence, section 8-205(a)(2)(iii) lets the court order a transfer to the other spouse if that spouse obtains release from the liens, authorize a buyout on court terms, or do both.

Path at the end	What you get	What you risk
Sell and split the net	A clean break. The sale pays off the loan at closing.	A sale on a deadline when spouses disagree on price.
One spouse buys out the other	Stability for the spouse and children who stay.	The refinance fails and the house goes back on the table.
Extend by written agreement	More time.	Two owners stay tied together after trust is gone.

Where does this go wrong?

Most use and possession problems start with what nobody wrote down.

No end date. The stay lasts longer than anyone planned.
No payment rule. One spouse stops paying and the bills pile up on the house.
No repair rule. A $12,000 roof becomes a fight.
The spouse who leaves loses track of the mortgage. I have seen this mistake before. The first notice is a lender letter.
The spouse who stays treats the order as ownership. Section 8-208 speaks to possession and use.
No backup. The refinance fails and there is no sale date.
Tax surprises. Ask your CPA about the home sale exclusion before the order starts.

Local note for Montgomery County: The Montgomery County Circuit Court runs a Family Law Self-Help Center. It is a free walk-in clinic staffed by attorneys, in the South Tower, First Floor, Room 1500. It gives general legal information or limited legal advice on divorce, custody, and related matters. You still pay case fees and costs. Source: https://www.montgomerycountymd.gov/circuit-court/services/family-law-self-help-center

If keeping the home does not work, here is how a divorce sale runs.

Questions about use and possession

Q1. What is use and possession of the family home?

Who lives in and uses the family home is a decision for the court, under Maryland Family Law Article section 8-208. The court gives one spouse sole possession and use, or divides it between the spouses. Title does not matter. The court weighs the best interests of any child. Your attorney explains how this fits your case.

Q2. How long does use and possession last in Maryland?

No number appears in the statute. The text of section 8-208 lists no fixed maximum period. Plenty of websites quote a number of years, so do not plan around one you read online. Ask your attorney what applies to your case. In any agreement, write down an end date or end triggers. Without one, a short stay turns into a long one.

Q3. Who qualifies for use and possession?

Hardship, children, and use of the home drive the question. Under section 8-208(b), the court considers any hardship to the party whose interest is infringed, the best interests of any child, and each party's interest in using the home as a dwelling or for production of income. Your attorney applies those factors to you. Wanting to stay is not enough.

Q4. Who pays the mortgage during use and possession?

Look at your order or written agreement first. It sets who pays. Section 8-208(c) allows the court to order either or both parties to pay the mortgage or rent, related indebtedness, maintenance, insurance, assessments, taxes, or similar expenses. This post's made-up 18 month example totals $63,000 in carrying costs. Put each cost and any repayment from sale proceeds in writing. Your attorney words it.

Q5. What happens if we stop paying the mortgage?

A missed payment hits every borrower on the loan. The debt stays owed. Ask your lender what happens on your loan, and ask your attorney how it affects your case. Take a made-up case. Three missed payments of $2,400 reach $7,200 before fees. Pay on schedule for as long as the house is listed.

Q6. Can I stay in the house while we divorce?

The court is allowed to decide possession and use before the case ends. Section 8-208(a)(2) covers the pending period. Until an order or written agreement says otherwise, check with your attorney before you change locks, block your spouse, or move out. Anything that changes who lives in the house goes in writing first.

Q7. Can my spouse force me out of the house?

A court makes that call, not a spouse. Section 8-208(a)(1) allows the court to grant one spouse sole possession and use of the family home regardless of title. Until you hold a written agreement or an order, leave the locks and the belongings alone. If you are not safe at home, call 911. Otherwise, call your attorney the same day.

Q8. Should I move out?

Run this decision past your attorney before you pack. Under section 8-208(b), the court considers each party's interest in continuing to use the home as a dwelling. Before you leave, get written terms on who handles the mortgage, taxes, insurance, repairs, and showings, plus the date the house is listed.

If keeping the home does not work, here is how a divorce sale runs.

Do you need a divorce attorney?

You should have your own. I am a real estate agent. I do not give legal advice, and I do not work for one spouse against the other.

I am not affiliated with any law firm. I do not recommend one attorney over another. Your spouse needs their own attorney, not yours.

If you need to find one, start with these bar association resources:

Maryland State Bar Association, For the Public (points you to your county bar association)
Bar Association of Montgomery County, Maryland, Lawyer Referral Service

Links open in a new tab.

What an attorney handles	What I handle
Who gets the house and the money	The value of the house
The marital settlement agreement	The net sheet
Court orders that affect the sale	Listing, showings, offers, and closing
Custody, support, and everything outside real estate	A written record of every showing and decision

General information only. Not legal, tax, or financial advice. The referral services are independent of me. I do not guarantee any attorney's work or results.

About the Author

Marc Cormier