Lesson 53: Possession is 9/10ths of the Law

From the Divorce section of How You Can Avoid Legal Land Mines by Joseph S. Lyles (2003).

It really doesn’t sound fair, but often the party who has possession of anything over which a legal dispute has arisen has an advantage in the struggle. For example, in a child custody dispute, the person who has the physical custody of the child at the outset of the dispute usually has a distinct advantage. Of course, the courts will not reward kidnapping, but if your physical custody of the child is not illegal, you will be better off in the custody battle that ensues.

Another example is that possession of real estate or other property gives you several advantages in a legal dispute over that property. It is easy for you to protect the asset from harm from a third party, and it is easy for you to have the property appraised. In addition, it is often an advantage to be able to use and enjoy the property during the pending dispute.

A final example of the power of possession is a case in which a Family Court judge awarded a spouse involved in a divorce the temporary custody and control of a dog and horse. In this case, she sold the horse and had the dog put to sleep. While the husband was convinced she took those actions just for spite, it was difficult to prove because she had plausible reasons for why she had to take them.

The Lesson: Try to maintain possession over any property that is the subject of a legal dispute. Having physical possession gives you the ability to preserve, appraise, use and protect the property during the pendency of the lawsuit.