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Modification of Orders Affecting Use of Marital Home

One issue that arises in divorce proceedings is the use and possession of the family home, particularly when the spouses are living in the same house and both require use and possession of the home. If the parties have minor children, the custodial parent usually receives the right to use and possess the home in order to safeguard the children’s interest. This right is given to the custodial parent as a form of maintenance or support, in the court’s discretion. The right given to one of the spouses is limited to a specific period after the divorce, which is determined by the court. That benefit may last in some form until the parties’ youngest child no longer is a minor.

Generally, the right given to the custodial parent does not deprive the other spouse from his/her ownership right. The non-custodial spouse is awarded a lien against the home with the intent that it would be paid on the sale of the home or at a specified time. In that respect, both spouses enjoy their ownership rights.

In some cases, the spouse who is the custodial parent may enjoy the possession of the home until he/she remarries. In other situations, the best interests of the minor children take precedence so that the court may allow the remarried custodial spouse to remain in the community home. Adoption of the children by the custodial spouse’s new spouse also can provide grounds to terminate the property possession arrangement.

If the minor children are emancipated, such that the custodial parent no longer is responsible for the children’s custody, then the court may terminate the property arrangement. In that event, the spouse living in the house could be forced to vacate.

During the tenure of one spouse’s exclusive possession of the marital home, the court may order both or either party to pay mortgage payments, maintenance costs, insurance, assessments, and taxes and other expenses to maintain the property.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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