Q: What does "Defendant shall 'indemnify and hold the Plaintiff harmless'" mean with regard to property in a divorce?
5 yrs after my gf divorce, she is looking at finally buying a house. She learned her ex did not refinance the house in his name after she deeded the house to him. She filed for the divorce and is the Plaintiff. The divorce decree under "Real Estate" states "That the Defendant shall be awarded the home located at XXXX N. XXth Street, Omaha, Nebraska free and clear of any interest of the Plaintiff, subject to the mortgage for which the Defendant shall indemnify and hold the Plaintiff harmless." My gf was under the impression that her ex would have to refinance the house in his name. For the past year, he has made a majority of payments late on the mortgage which is driving her credit score down. She needs to get her name off of the mortgage so she can purchase a home of her own.
A:
A quit claim deed after divorce can remove a spouse from the title of a home. It doesn't remove the spouse from the mortgage. If the parties have entered into a mortgage with joint responsibility, the Decree doesn't change that parties' agreement to the creditor that they are each responsible for timely mortgage payments. The Decree can order one party to have to repay the other for payments that party made to the creditor, but it doesn't change the parties' agreement with the creditor that they can both be held responsible.
Generally the divorce Decree will give a relatively short period of time that the party that was awarded the home must sell or refinance the home so that there is no longer a mortgage with joint responsibility. If a party doesn't sell or refinance in that period of time, then it is common to file a contempt action to ask for the court's assistance to force the other party to sell or refinance asap or face repercussions up to and including jail time.
If a party is still on a mortgage many years after a divorce, then you need to contact an attorney to review the order to see what can be done to remedy the situation. The best route for relief is likely going to depend on what the divorce decree states.
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