Gusty A.E. Sunseri & Associates, P.C. Attorneys at Law

Divorce - What if the 'Ex' lives in the marital residence 3 years after separation & doesn't pay the mortgage?

A colleague of mine, who is a Pennsylvania as well as a Pittsburgh Divorce lawyer, recently had a situation in one of his equitable distribution cases that was very unique and unusual. It seems that the Husband left the residence in October of 2009, giving exclusive possession of the residence to his Wife. Of course, who ends up with the house during the separation of the married couple can sometimes be very contentious, but in this situation, the Husband was quite accommodating and thought nothing of allowing the Mother of his children to keep possession of the residence. The Wife was happy too.

So what was the problem? Well, three months after the separation, the Wife decided to quit paying the mortgage. That's right-zippo! Not one penny of the $3200 a month mortgage was paid. And, get this-she made $100,000 a year in income. She then proceeded to make every move possible to delay the foreclosure process. She procrastinated and successfully delayed the process for over three (3) full years-$115,200 of mortgage payments- never paid. How about this-the bank still has not foreclosed. Sounds pretty good for her, huh-well no! The Wife's day of reckoning finally came at the equitable distribution trial.

My attorney friend said that the Wife was quite cavalier about the whole thing at trial. She acted offended when asked what her "end game was", I mean, what she was going to do when the bank finally foreclosed. When asked by the Judge what the Husband should receive, if anything, as she lived in the marital residence virtually free for three years, ruining the Husband's credit and eliminating any chance of there being equity in the house-she said "He shouldn't get anything."

The problem with the Wife's reasoning is this... in Pennsylvania, a credit may be allowed for the fair rental value to the spouse who does not have the use and occupancy of the real estate during the separation. Of course, credits can also be given for payment of the mortgage-thus offsetting each credit, but she did not pay a dime! In reviewing the totality of the situation, the Court concluded that it would be inequitable to allow the Wife to live in the residence for three years without paying the mortgage and not give the Husband a credit for ½ of the rental value of the residence. She now owes the Husband over $70, 000. In this particular situation, the Pennsylvania equitable distribution process was, just that, equitable!

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