[WSBAPT] Fwd: Divorce/Enforcement of Property Settlement

Mon Jun 28 19:47:44 PDT 2021

  Law Office of
F.ANDREKITA SILVA
____________________________________________  

                                                  June  28, 2021

Diane,

Unless Wife was awarded a judgment which has not yet been paid, she  
may not have a great remedy available.

When the court allocates debt, the final decree ordinarily has “hold  
harmless” provisions. If the obligated spouse doesn’t pay a debt, and  
the creditor goes after non-obligated spouse, if non-obligated spouse  
pays the creditor’s demand, or  is sued and garnished, etc. then the  
non-obligated spouse can go back to court in the dissolution case and  
ask for a judgment against the obligated spouse.

Unless this is a small credit card debt, this can be a useless  
remedy.  If the obligated spouse had the means to pay the mortgage,  
they probably wouldn’t have let a house go into foreclosure, etc.

Presumably, husband was awarded the home because he appeared to have  
the financial strength at the time of the order to make the payments.   
In a divorce, if neither party looks like they can buy out the other  
or make the payments, the court will order the home to be sold and the  
equity divided.  

When a home IS awarded to one or the other, once title vests in the  
spouse to receive the real property, the court loses it's authority to  
order a sale. 
Unless the failure to pay money is related to support, then contempt  
isn't an option. 

To avoid harm to the spouse that didn't receive the home for debt non  
payment, there should be a provision requiring the party who was  
awarded the home to refinance within a certain amount of time. It  
looks like this decree didn’t have such a provision?

Basically, the non obligated spouse has limited options.  They can  
negotiate a resolution with the obligated spouse to lend money in  
exchange for a lien on the home and contract and/ or modification of  
the decree to include provisions that SHOULD have been included in the  
original decree.

If the obligated spouse plans on letting the home foreclose, if the  
non obligated spouse has the financial ability, they can enter into an  
agreement/ contract to take over payments and sell the home to avoid  
bad credit (worse credit).

If the non obligated spouse can’t afford to bail out the other, and if  
the home forecloses, then they live with bad credit.  Although, they  
can explain on credit report that other side was ordered to pay, etc.   
That may or may not help them.  

If when you say the obligated spouse “defaulted”, you just meant they  
made some late payments, then non- obligated spouse should see this as  
an opportunity to take proactive steps to avoid a more dire situation.  
They can try to secure a voluntary contract from obligated spouse that  
lays out what happens in the event of late payments, etc. 

It seems like I once read a case where a non obligated spouse made  
mortgage payments before a demand was ever made by the creditor.   
Since the decree didn’t say payments couldn’t be late and/ or that  
non-obligated could pay before a creditor demand was made, the court  
said “that was a gift.” 

A court can't read provisions into a decree that aren't there.  Since  
a default can be envisioned, it wouldn't be a change in circumstances  
to support modification of the decree.  So, I’m not aware that the  
court has the authority to order a modification or a remedy other than  
indemnification.

andrekita
Law Office of F. Andrekita Silva
1325 Fourth Avenue, Suite 2000
Seattle, Washington 98101
206-224-8288
www.seattle-silvalaw.com

----- Forwarded message from Candace Wilkerson  
<cwilkerson at wongfleming.com> -----
    Date: Mon, 28 Jun 2021 20:47:15 +0000
    From: Candace Wilkerson <cwilkerson at wongfleming.com>
Reply-To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Divorce/Enforcement of Property Settlement
      To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>

   Hi Diane,

   Our firm has several attorneys who might be able to help.  The PC  
can call our office and ask for a free initial consult (425-869-4040).

   Best,

   Candace

    /*Candace is available to respond to emails and phone calls  
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    Candace Wilkerson  | Senior Associate  |  Wong Fleming 

    10675 Willows Road NE, Suite 250  |  Redmond, WA 98052
Phone: 425.869.4040  |  Fax: 425.869.4050
cwilkerson at wongfleming.com

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     FROM: wsbapt-bounces at lists.wsbarppt.com  
<wsbapt-bounces at lists.wsbarppt.com> ON BEHALF OF Diane J. Kiepe
SENT: Monday, June 28, 2021 4:14 PM
TO: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
SUBJECT: [WSBAPT] Divorce/Enforcement of Property Settlement

   Any names that you can share in the area of Divorce/property  
settlement issues would be greatly appreciated.  Divorce decree  
provided for husband to reside in primary residence and pay mortgage.   
He is in default and ex-spouse still has name on loan so  
understandably concerned.  I’d be worthless for her so I’m hoping you  
all can share an east siders name.

   /Diane J. Kiepe/

   / /

   Diane J. Kiepe

   Douglas Eden

   717 W. Sprague Ave.

   Suite 1500

   Spokane, WA  99201

   djkiepe at depdslaw.com

   509-455-5300

----- End forwarded message -----

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From: Candace Wilkerson <cwilkerson at wongfleming.com>
Subject: Re: [WSBAPT] Divorce/Enforcement of Property Settlement
Date: Mon, 28 Jun 2021 20:47:15 +0000
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