quitclaim divorce

by Patrick Gaffney

Quitclaim deeds are a vehicle used to convey an interest in real property.  They are very common in divorce proceedings.  There are a few things to be mindful of with regard to these documents.

A deed affects only how the property is titled.  It has no effect on the debts or loan obligations of both husband and wife.  The debt associated with a home is reflected by a promissory note.  The lien on a home is reflected by a mortgage.

Any property that was purchased during marriage is presumed to be marital property, assuming it was purchased with marital funds.  Marital funds are those funds that were earned during the marriage.  The presumption is that all marital property is divided equally upon divorce.  There are special circumstances where the court will consider an unequal distribution.

If both spouses agree to the terms of a divorce settlement, a quitclaim deed is the fastest, easiest and least expensive way to remove your spouse’s name from the deed to the property.  If both spouses do not agree on the settlement of assets and debts, then the court will decide on an equitable division.

In a typical situation where there is a mortgage on the property, it is generally accepted that the spouse who retains the home will have to refinance it within a specified period of time, such as sixty or ninety days.  Refinancing comes at a cost—both as to application fees and an increased monthly mortgage payment.  If the cost cannot be born, then the home is typically sold and the proceeds divided.

Even if your spouse is not on the title, he or she may have legal rights to claim a share in the property based on laws regarding marital property that was accumulated during the marriage.  For example, if there were improvements to the property or the pay down of a mortgage with marital funds, a spouse may claim an interest in the home, even if his or her name is not on the deed.

If you were awarded by the court a full ownership of a property during your divorce, your ex is required by the court to sign the quitclaim deed.  If they refuse, you can take it back to the court for violating the divorce decree.  In the alternative, the divorce decree may be fashioned in such a way that by its terms, the decree itself will act as a conveyance of property.

A quitclaim deed is distinguished from a warranty deed, as with the former, the owner simply transfers what is owned, and makes no representations with regard to the state of the title.  These conveyances are useful tools for the transfer of real property.

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