Divorce and PFA – What You Need To Know
It comes as no surprise that divorces are very emotional for the people involved. As a result, they can frequently lead to the filing of Protection From Abuse Actions by one or both spouses. These protection orders are designed to prevent violence or threats of violence in the home. The primary focus of this topic is to address the impact a PFA can have on one’s financial interest in the marital residence.
It’s obvious that when you own real estate, you have the right to either live on the property or to get rent from the person who resides there. In some divorce actions, one spouse may be ordered to vacate the residence for a variety of reasons. In general, when a spouse has been removed from the marital residence, they have a right to seek one-half the fair rental value of the property from the other spouse. However, this interest is most often counteracted when the spouse living in the home is paying for the mortgage and general upkeep. In Lancaster County, these competing interests usually cancel out each other.
Particularly in this blog, if a spouse is removed from the residence by a Protection From Abuse Order, they are no longer entitled to this rental credit under any circumstances.
The Pa Superior Court focused on this very issue in the case of Lee v. Lee, 978 A.2d 380 (Pa.Super. 2009). Husband and wife lived in the marital residence, with both parties named on the deed. When the parties separated, the husband left the marital residence, and the wife remained with the parties’ child. One day, the husband and wife got into an argument over custody, which led the wife to file a Protection from Abuse Action against the husband. This PFA ordered the husband to vacate the marital residence.
At a divorce hearing, the husband demanded that he be reimbursed one-half the fair rental value from the wife for the time that he was not permitted in the marital residence while the divorce was pending.
In its opinion, the Superior Court first gave the general rule that parties have an equal one-half interest in marital property. The Court then laid out factors relevant to determining an appropriate amount:
- The dispossessed party is entitled to a credit for the fair rental value of jointly held marital property against the party in possession of the property; (meaning the party not living in the house can get a fair rental credit from the party living in the house).
- The rental credit is based upon the extent of the dispossessed parties’ interest. (so, if they have one-half interest, they can only get one-half the rental value);
- The rental value is limited to the period of time during which one party is dispossessed and the other party is in possession of the property.
- The party in possession is also entitled to a credit for one-half of the payments they’ve made to maintain the property on behalf of the dispossessed spouse. (This means the rental credit for one spouse will be reduced or eliminated based on the payments made by the spouse while living in the residence.).
So how, then, does a PFA affect one’s interest in the marital residence? The Superior Court made clear in Lee that a dispossessed party is not entitled to a rental credit when their own bad behavior has forced them to vacate the property. After a hearing, a PFA was issued against the husband, forcing him to vacate the home. It would therefore be punitive to the wife if she were required to pay her husband rent when he was responsible for his removal. In the end, the husband was denied any form of rental credit while the PFA was in place.
Please note that the husband is not losing all of his interest in the house. Through equitable distribution, he still has an interest in the equity of the house. The major difference is that he cannot increase his interest based on the argument of a fair rental value.
If you would like to discuss issues with divorce or PFA, please contact our office, and we will be happy to schedule a consultation with any one of our attorneys.
