Frequently Asked Questions about Use and Possession

Q. What happens if the family has been living in property which was acquired by the non-custodial parent prior to marriage or inherited by that person: Can that property be subject to a use and possession order if all other tests are met?
Q. What happens to the family home in the case of a joint and/or split custody?
Q.  If a party has custody of a child from a prior marriage, can a use and possession order be obtained?
Q. How long can the family home be kept by the custodial parent?
Q. What happens if, for example, the car is titled in one spouse's name and the other spouse is using it?
Q. Can the person who has obtained a use and possession order bar the other person from the house?

Q. What happens if the family has been living in property which was acquired by the non-custodial parent prior to marriage or inherited by that person?

A. Court would examine closely all facts and circumstance related to the acquiring property. It is possible that a child and custodial parent would not be allowed to continue living in the home in which they resided while the parties were living together.

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Q. What happens to the family home in the case of a joint and/or split custody?

A. court would look to the needs of each child and the specifics of the particular custodial arrangement and make a determination based on the best interest of the children.

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Q. If a party has custody of a child from a prior marriage, can a use and possession order be obtained?

A. No. it must be a child of the separating parties.

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Q. How long can the family home be kept by the custodial parent?

A. Up to a maximum of 3 years from the date of limited or absolute divorce.

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Q. What happens if, for example, the car is titled in one spouse's name and the other spouse is using it?

A. Court would look to see how the property was acquired to see if it still fit within the definition of family use personal property.

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Q. Can the person who has obtained a use and possession order bar the other person from the house?

A. Yes. A use and possession order grams exclusive occupancy to one party. On a practical basis, the other party may need to come to the house in conjunction with visitation.

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