Typically, one spouse moves out of the marital home when a marriage breaks up. The issue of fair rental value arises where one spouse is no longer living in the marital residence pending finalization of the divorce action.

This commonplace situation has led to a general rule in Pennsylvania Courts that a dispossessed party can claim a credit for the fair rental value of the marital property which is jointly held against the spouse in possession at the time of equitable distribution. In other words, the spouse in the marital home must pay rent for the time he or she lives there exclusively. Whether rental credit is due, and whether it will be awarded, is within the sound discretion of the court when it comes to dividing property. The trial court has considerable discretion when determining whether to grant rental value as part of equitable distribution.

The principle behind fair rental value is that the spouse that has moved out of the former marital residence still has a one-half interest in the property, and accordingly should be compensated for their interest. Courts seem to be primarily concerned with fairness when deciding whether they will award rental value, and they consider several factors in making this determination.

Rental credit is awarded, and therefore limited by, the amount in which the dispossessed spouse had a personal or financial interest in the property. Additionally, the rental value is limited to the period of time during which a party is dispossessed and the other party is in actual or constructive possession of the property. Finally, the party in possession of the property is entitled to a credit against the rental value for payments made to maintain the property on behalf of the dispossessed spouse. Therefore, the rental credit can be offset by the remaining spouse if the remaining spouse has been paying the mortgage, property taxes, insurance and the cost of repairs or upkeep to the marital residence. Half of these costs can be assigned the responsibility of the departed spouse, as these costs are necessary to protect and benefit his or her interest in the home’s equity and ownership.

An argument for fair rental value is most likely to occur where the home is owned outright such that no mortgage payments are made or there are relatively small monthly payments on any debt associated with the house compared to what the home could rent for. Often, when the spouse who has exclusive possession is paying the entire mortgage and upkeep, there is no point in fighting over a rental value credit as the two factors cancel out each other. 

Another crucial factor of this determination is whether or not the party could rightfully be in the home. If one party has been excluded from the home due to a court order, such as a PFA order, they are not entitled to rental credit for the time that they have been banned.

Once again, the award of fair rental value is within the discretion of the trial court. Pennsylvania courts seem to be concerned primary with fairness when determining whether to award a rental credit. The courts have emphasized that awarding half of the rental value is not mandatory, and that they are more concerned with the overall distribution being equitable. 



For more information contact Kara Haggerty by phone at 717-591-1755 or by email at khaggerty@pjrlaw.com 

By Harlan Accola

You probably are well aware that the inflation rate in the U.S. has been hitting fresh 40-year records lately. But did you know divorce rates in the U.S. for older couples have been reaching new highs lately, too? In fact, for couples in the U.S. who are 65 and older, the divorce rate has tripled since the 1990s. The trend is called “Silver Divorce” or “Grey Divorce.”

For older adults who are divorcing, assets have likely been intertwined for decades, adding to the challenge of dividing them. Financial needs are sure to be top of mind, as both parties will need a means to support their own individual lifestyles throughout a potentially lengthy retirement period.

For homeowners 62 and older, a reverse mortgage could help as part of a divorce settlement.

What is a reverse mortgage?

While there are various types of reverse mortgages available, the Home Equity Conversion Mortgage (HECM) is by far the most utilized option and the only one insured by the Federal Housing Administration (FHA).

A HECM enables homeowners 62 and older to access a percentage of their home equity as cash, fixed monthly advances, or a line of credit. Unlike other types of home loans, reverse mortgages do not require the borrower(s) to make a monthly mortgage payment toward the loan balance, so long as a borrower lives in the home, maintains it, and pays the property charges, like taxes and insurance.

A HECM loan generally becomes due and payable when the home is no longer the primary residence of at least one borrower (e.g., the last surviving borrower passes away or permanently moves into a nursing home). The loan is usually satisfied via the sale of the home. In instances where the loan balance exceeds the home value when the loan is due and payable and the home is sold, the FHA insurance kicks in to cover the balance deficiency. The borrower and heirs can rest easy knowing they won’t be stuck with a bill after the sale of the home.

Note: A reverse mortgage can also be used to purchase a new home. More on that in a bit.

How could a reverse mortgage help as part of a divorce settlement?

Scenario 1 — Spousal Buyout

Let’s say one spouse wants to continue to live in the home and one wants to move out, and the departing spouse wants his or her share of the home equity. The reverse mortgage could allow one ex-spouse to stay in the home, with the reverse mortgage used to pay a necessary portion of the home’s equity to the other ex-spouse. Again, a reverse mortgage doesn’t require monthly principal and interest payments toward the loan balance, so long as the borrower lives in the home and meets the loan terms. In other words, the buyout can happen for the departing spouse without disrupting either retirement plan.

Scenario 2 – Sell and Both Buy

Alternatively, the home could be sold with the proceeds split, and then each of the ex-spouses could use his or her half of the home equity with a Home Equity Conversion Mortgage (HECM) for Purchase (H4P). An H4P loan allows homebuyers 62 and older to purchase a new primary residence with a down payment of about half of the purchase price* from his or her own funds — the remainder is funded by the H4P loan. The homebuyer can, and typically does, apply proceeds from the sale of their current home toward the down payment requirement.

By selling the home, each spouse can have half of the equity, which is often enough for both to acquire a similar home with no mortgage payment using an H4P loan (must live in the home and pay the property charges, like taxes and insurance). So, it feels a lot like an all-cash payment, except the borrower gets to keep more of his or her retirement assets to use as he or she wishes.

There are many legal reasons to use a reverse mortgage loan in retirement.

From estate planning and tax planning to foreclosure prevention and litigation**, reverse mortgages can be an effective tool used in legal planning. To learn more, contact a retirement mortgage specialist at Fairway Independent Mortgage Corporation.

About Author: Harlan Accola

Harlan Accola is the National Reverse Mortgage Director at Fairway Independent Mortgage Corporation. He has been in the mortgage industry for over 20 years and has worked with all types of loans, but his specialty has always been working with the 62+ age group and reverse mortgages. Harlan is the author of Home Equity and Reverse Mortgages: The Cinderella of the Baby Boomer Retirement. Accola may be reached at HarlanA@fairwaymc.com.

*The required down payment on your new home is determined on a number of factors, including your age (or eligible non-borrowing spouse’s age, if applicable); current interest rates; and the lesser of the home’s appraised value or purchase price.

**This advertisement does not constitute tax or financial advice. Please consult a tax or financial advisor regarding your specific situation.

Copyright©2022 Fairway Independent Mortgage Corporation (“Fairway”) NMLS#2289. 4750 S. Biltmore Lane, Madison, WI 53718, 1-866-912-4800. All rights reserved. Fairway is not affiliated with any government agencies. These materials are not from HUD or FHA and were not approved by HUD or a government agency. Reverse mortgage borrowers are required to obtain an eligibility certificate by receiving counseling sessions with a HUD-approved agency. The youngest borrower must be at least 62 years old. Monthly reverse mortgage advances may affect eligibility for some other programs. This is not an offer to enter into an agreement. Not all customers will qualify. Information, rates and programs are subject to change without notice. All products are subject to credit and property approval. Other restrictions and limitations may apply. Equal Housing Opportunity.

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