The Family Law Lawyers at Arnold & Wadsworth are here to help you protect your legal rights in your divorce. Our divorce attorneys in Salt Lake City offer a free consultation in order to assess your case and educate you on the issues you are facing. The attorneys at Arnold & Wadsworth will also provide you with a road map on how best to attack your case. Call today.
During 2008 everyone knows the housing market crashed. Having the housing market crash caused a lot of problems in the divorce world in Utah. The problems came from unpaid mortgages and how to deal with it in a court of equity. There were many clients that came to our divorce law firm to settle these problems. The mortgage problems usually shows its ugly head by a violation of a divorce decree or trying to negotiate a divorce decree.
If your ex-spouse is behind on mortgage payments you may be entitled to damages as a result of their breach of your divorce decree. There is a case in Utah that outlines a breach of the divorce decree when it comes to the mortgage; Gardner v. Gardner.
“The hold harmless provision at issue in this case does not differ in any material respect from those interpreted in the cases we have just examined. See generally Long v. McAllister–Long,
221 S.W.3d 1, 10–12 (Tenn.Ct.App.2006) (reasoning that “[a] hold harmless agreement … is generally classified as an indemnity against liability” agreement). As acknowledged in Long,
a divorce decree is interpreted “according to established rules of contract interpretation” and its effect is determined by its plain language, Mitchell v. Mitchell,
2011 UT App 41, ¶ 5, 248 P.3d 65 (mem.) (citation and internal quotation marks omitted). See also Long,
221 S.W.3d at 9, 11. The hold harmless provision in the Gardners’ divorce decree orders Wife “to assume and pay and hold [Husband] harmless from … the … mortgage.” As recognized in Lemery,
to “hold harmless” means “[t]o absolve (another party) from any responsibility for damage or other liability arising from the transaction,” Black’s Law Dictionary
800 (9th ed. 2009). See Lemery,
2001 WL 1160797 at *2 (looking to the definition of “hold harmless” to interpret a hold harmless provision in a divorce decree). By requiring absolution from “any
responsibility for damage or other liability,” Black’s Law Dictionary
800 (9th ed. 2009) (emphasis added), the definition of “hold harmless” indicates that Wife must “prevent harm or loss to” Husband regardless of whether he has “actually paid an obligation for which [Wife] has been found liable,” see Long,
221 S.W.3d at 10–12. In addition, the hold harmless provision requires Wife to both “pay” the mortgage and to “hold [Husband] harmless” from the mortgage.”
Gardner v. Gardner, 2012 UT App 374, 294 P.3d 600, 607
This case shows that damages can be assessed in a couple of different ways including difference in interest rate that one could have gotten, or actual damages incurred. The Divorce Lawyers
at Arnold & Wadsworth have experience in these types of cases. Call today for a free consultation to examine your rights. Call (801) 475-0123 today.