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Mortgage Payments

A jointly owned property is frequently addressed in family law actions. It may be defined as a marital asset hence subjecting it to equitable distribution. Financial responsibility for the property may also be a factor in the context of a support action. If only one party is making payments on a marital residence while a divorce is pending, they may be able to seek a credit for payments made. This may be the case if both parties are residing in the home or if the party not contributing to the mortgage is residing in the home. Mortgage payments may also be considered in the course of establishing a support award. Pennsylvania Rule of Civil Procedure 1910.16-6 covers adjustment to basic support awards and allocation of additional expenses. Under sub-section (e) mortgage payments, real estate taxes, and homeowners' insurance may need to be considered. Second mortgages, home equity loans and other obligations secured by the marital residence may be considered but are within the discretion of the court and addressed on a case-by-case basis.

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The expense to maintain the marital residence can be considered if the total expense exceeds 25% of the obligee's (party receiving support) or obligor's (party paying support) income. If the obligee is in the marital residence and paying the mortgage, the court would look to see if the mortgage payment exceeds 25% of the obligee's income after considering the basic support award. If the mortgage is still more than 25% the court can direct the obligor to assume up to 50% of the excess resulting in an increased support award. Obligors can also receive assistance with the mortgage if they are the party in the marital residence or responsible for the payments. The basic support award is subtracted from the obligor's net income first. If the mortgage payment is more than 25% of the remaining net income available to the obligor, the court may make a downward deviation in the basic support award. The mortgage deviation is only applicable prior to final equitable distribution in the divorce matter. Additionally, the courts are more likely to allow for a mortgage deviation in cases where the home is ultimately going to be sold as opposed to a case where one party intends to keep the residence post-divorce.

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