Divorce and Quitclaim DeedsThe following information about divorce and quitclaim deeds can help you understand how to protect your interests when you will be keeping the house after divorce.
The mortgage is in my name, but the deed is in both of our names. Nancy's Question: Our mortgage was originated in my name only to get a better interest rate, but both our names are still on the deed. What can I do? Timothy's Answer: The fact you have your mortgage in your name only and yet have both your names on the deed is disturbing. As currently structured, you are solely responsible for paying the mortgage and he has no responsibility. Yet, he owns the house with you. I would consult with your attorney about doing a "quitclaim deed" to have your husband removed from the deed. Why should he benefit from any ownership without having to share in the responsibility for the burden of debt? » Return to top Is he entitled to any equity if he signed a quit claim deed?
Nancy's Question: My husband quit claimed the house to me in order to get it mortgaged since he was not employed at the time. I have always been the main provider for the family, but am worried that in the divorce settlement he will be able to sue for half of the equity in my house. How do you think the judge would decide to divide the equity in my home if I were to divorce? Brette's Answer: If the house was purchased during marriage, it is marital property and will be divided in your divorce. How much of a portion he would be entitled to would depend on your state's distribution laws, as well as evidence you could present to the court about your financial situation. Get an attorney. » Return to top Would a quit claim deed protect me after divorce? Lori's Question: We are going through a divorce and I will not be able to refinance the mortgage in my own name for about 5 years, as I am currently a full-time student with little income. If my husband is involved in a legal action, can I lose my home? Would a quitclaim deed protect me? Brette's Answer: Getting the deed in your own name
is the answer. You can either do this through a divorce proceeding, or by
getting your spouse to sign a quit claim deed. Having his name on the mortgage
does not equal an ownership interest. It just means if you don't pay the bank
will go after him for money. Does a quitclaim deed remove my responsibility for the mortgage? Matti's Question: We held equity loans for two separate properties, and during out divorce, each property was signed off to its respective owner using a quit-claim deed. My ex has failed to meet his financial obligations and creditors are pursuing me. Am I responsible for this debt, or did the quit-claim deed absolve me of responsibility? Timothy's Answer: Unfortunately, this is a common error that divorcing couples often make when dividing their property. As you are now finding out, a quit claim deed only applies to the title of the property and not the loan obligation. You should consult with the attorney who handled your case to see when the deed was executed whether the mortgage remained in both parties names. By the sounds of it, the original loan documents may still be in your joint names. This could explain why the creditors are pursuing you now that your ex is behind on the payments. Regardless of how the marital property was divided in your divorce decree, you will still be responsible for the financial obligations on all jointly held debt. Before you pay the debt, you should review your settlement agreement to see if your attorney added a clause to protect you from having to pay this obligation. If the clause was broken you would have the right to take legal action against your ex-spouse. » Return to top Why do I need a quitclaim deed to sell if everything is in my name? Deb's Question: I have been separated for four years and am attempting to sell my house. I am the only person on the title & mortgage, and my partner has never lived in the house or made payments on the mortgage. I've tried to have a Quit Claim Form signed by my former partner and he has refused. Is this form really necessary for me to sell my house? Brette's Answer: Even though your ex is not on the title, they are asking for a quit claim deed because as your spouse, he may have some interest in the property. They want to make sure the title is clear before selling. Most attorneys would advise their buying clients to get this and not to close without it. You could go ahead and get a divorce, clearing title on it. Otherwise you most likely do need to get a quit claim deed. » Return to top Could he sell the house if I didn't sign a quit claim deed? Julie's Question: If a quitclaim deed was not signed at the time of our divorce and my ex has not refinanced removing my name, can he legally sell it without my approval? Brette's Answer: If you are listed on the deed, then no. What if he won't sign the quit claim deed? Ann's Question: What if my ex won't sign the quit claim deed? Brette's Answer: If the court gives you full ownership of the home, you would need to find out what the requirements are in your county to record the deed - whether the signed court order is sufficient to change title or if you need a quit claim deed. If he needs to sign the deed and refuses, you go back to court and he can be held in contempt which could ultimately lead to jail time. » Return to top Can the court make me sign a quit claim deed? Jacquelyn's Question: Can the court force me to sign a quit claim so that my spouse can buy a house during a divorce proceeding? Brette's Answer: The court can order that the ownership in the home belongs to your husband. Good luck.
Related Articles: This column is not intended to take the place of professional advice, but rather to provide financial information about the various issues that arise in a divorce. For specific recommendations concerning your situation, you should retain an experienced certified divorce financial analyst who can answer your questions based on the details of your case. WomansDivorce.com, Timothy McNamara, and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for professional advice. Divorce
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