Upon Separation from Your Spouse Will You Get Credit for Paying the Mortgage on the Marital Home?

The answer is, unfortunately, it depends. There is no black letter law that states: “the party paying the mortgage during the divorce shall receive credit for all mortgage payments paid.” There is no black letter law that states: “the party paying the mortgage during the divorce shall not receive credit for all mortgage payments paid.” The court in resolving a divorce case sits in equity. A court sitting in equity means the court can do whatever the court deems “fair” and “just.” Although there are factors in the Divorce Code and case law to guide the Court, what is fair and just in any case depends upon the facts of that case and the discretion of the trier of fact.

In Robert v. Martin, 2024 Pa. Super. LEXIS 300 (2024), the Divorce Hearing Officer (DHO) gave the Husband credit for paying the mortgage, property taxes and homeowner’s insurance during the separation period. The DHO gave the Husband credit for $43,773.12. The DHO determined that amount by taking the amount of principal owed on the mortgage at the time of separation, $$282,592.20, and subtracting from it the mortgage payoff amount at the time of sale, $238,819.08, which is approximately forty-one percent of the $106,000 Husband paid in mortgage payments during separation. Notice the DHO did not give the Husband the full amount of the mortgage credit. Instead, the DHO fashioned an award that aligned with Husband's share of the sixty-forty equitable distribution scheme. The Wife objected and appealed. The Superior Court set forth the law on this issue:

“The following tenets inform our review. The trial court may award credits to a party in equitable distribution for the payment of mortgage and taxes to the spouse who does not have the use and occupancy of the real estate during separation. However, credit is not mandatory and may be denied as long as the total distribution scheme is equitable. Middleton v. Middleton, 2002 PA Super 371, 812 A.2d 1241 (Pa.Super. 2002) (en banc) (credit denied where payments were voluntary and credit would result in economic injustice); Schmidt v. Krug, 425 Pa. Super. 136, 624 A.2d 183 (Pa. Super. 1993) (credit denied where both spouses had access to the property).”

Robert v. Martin, 2024 Pa. Super. LEXIS 300, *16

In this case, the Court gave Husband some but not all credit for the mortgage, taxes, and insurance that he paid on the marital residence during the separation period.

If you have questions about divorce, do not hesitate to contact Scaringi Law at 717-657-7770.