Divorce and Quitclaim Deeds

The following information about divorce and quitclaim deeds offers tips on how to protect your interests in the family home.

By WomansDivorce 

Depending on whether you will be keeping the house after divorce or your ex will get it, title and ownership of the property is something that needs to be taken care of. In a divorce situation, a quitclaim deed is the most common way of transferring ownership of the marital home from one spouse to the other.

To be valid, the quitclaim deed needs to be in writing. Is should include:

  • the date the agreement is executed,
  • the physical address and legal description of the property, 
  • which county and state the property is located in, 
  • the name of the person transferring the property title (Grantor), and 
  • the name of the person who will receive the property title (Grantee). 

The person transferring the title needs to sign and date this document and have it notarized. The quitclaim deed then needs to be filed with the county courthouse where the property is located. It's important to note that a quitclaim deed only addresses ownership of the property, not the mortgage. Who will be responsible for paying the mortgage is something that is addressed separately in your divorce settlement (here are some divorce mortgage options to consider). 

Find out how to get a person's name off the deed, what effect this will have on the mortgage and more with these answers from legal expert Brette Sember, J.D. & financial expert Timothy McNamara, CDFA.

FAQs about Divorce and Quitclaim Deeds

Will a quitclaim deed release me from the mortgage obligation?

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-husband has failed to meet his financial obligations and the creditors are pursuing me. Am I still liable for this debt, or did the quit-claim deed release my responsibility?

Timothy's Answer: Unfortunately, this is a common error that divorcing couples often make when dividing their property. As you have discovered, a quit claim deed only affects how the property is titled and has no impact on the loan obligation. You need to consult with the lawyer 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. You are still responsible for the financial obligations on all joint debts, regardless of how your marital property was divided in your divorce. However, before paying the debt, you need to review your divorce agreement to see if your lawyer included an indemnity clause protecting you from his assigned obligations. If this clause was included in your agreement and he in turn broke it, you would then be able to take legal action against him.

What if we are both on the deed, but the mortgage is only in my name?

Nancy's Question: The mortgage for our house was originated in my name only to get a better interest rate, but both our names are listed on the deed. What can I do?

Timothy's Answer: The facts that you have your mortgage in your name only and yet have both your names are 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 obligation to repay the debt?

Why is a quitclaim deed required 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. My former partner is refusing to sign the Quitclaim form. Is this form really necessary for me to sell my house?

Brette's Answer: Even though he is not on the title, your husband may have a legal right to claim a share in the house, and this is why they are asking for a quit claim deed. They want to make sure the title is clear before selling. Most lawyers will 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 signed quit claim deed.

When and how do I get his name off the house deed?

Lori's Question: My husband just stated he wants a divorce. We own a home together (both our names on the Deed itself and the mortgage). My father is getting a reverse mortgage on his home, to get a lump sum, to pay-off my mortgage in full. WHEN and HOW do I go about getting my husband's name off of the Deed to the house?

Brette's Answer: You've got to wait until you either sign an agreement or the court orders that you have possession of the home and responsibility for the mortgage. Your husband's name can be removed from the deed via quitclaim deed.

Can a quitclaim deed be filed before filing for the actual divorce?

Andrea's Question: We've been separated for several months and have agreed to the quitclaim, provided he gets a lump sum of money. Can we do this before we file for divorce or do we need to wait and hope the court doesn't order something different?

Brette's Answer: You can do it, but the court can always overrule it. The property is marital property and is subject to division in the divorce. And there would be nothing enforceable in a quitclaim to make sure your husband gets the money in return.

What if he refuses to sign the quitclaim deed?

Ann's Question: What if my ex refuses to sign the quitclaim deed?

Brette's Answer: If you were awarded full ownership of the house in your divorce, you will need to ask the county court clerk what the requirements are to record the deed. You may need a quit claim deed or it is possible that the signed court order is sufficient enough to change the title. If a quit claim deed is required and he refuses to sign it, you can take your ex-husband back to court for violating the terms of your divorce decree. The court could then hold him in contempt of a court order and he could face the possibility of having to serve jail time.

Will the judge force me to sign the quitclaim deed?

Jacquelyn's Question: Would the judge force me to sign a quitclaim deed so my husband can buy another house during the divorce proceedings?

Brette's Answer: The court can order that the ownership in the home belongs to your husband. Good luck.

Which party pays for the quitclaim deed?

Sharon's Question: My ex-husband was ordered to "execute" a quit claim deed for jointly owned property on Indian owned land. Because of the BIA involvement, the fees are quite expensive ($500+). Who is required to pay them - him or me?

Brette's Answer: You should check with your attorney, but generally the person filing the forms is responsible for the fees.

Should I sign a quitclaim deed prior to him refinancing?

Darla's Question: My spouse and I have executed a separation agreement giving me an equity payout upon his refinancing or us selling the home. He is in the process of refinancing the mortgage to remove me from loan, which should be approved soon, and is scheduling a closing. Is it okay to sign the quitclaim deed prior to the closing, or would my interests cease once I sign for his refinancing without the quitclaim?

Brette's Answer: The quitclaim removes you as owner. Refinancing only removes you from the mortgage. You need to do both, but you want to be sure not to do one without the other. I think you ought to have your attorney handle this transfer to ensure it is done correctly and that you receive your share.​ Good luck.

How is equity divided if he quitclaimed the home to me?

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 would the judge 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.

Would I be entitled to any profits after signing the quitclaim deed?

Melissa's Question: In our divorce, my ex was awarded the family home and assumes all indebtedness owed and holds me harmless. He is in the process of selling the home and asked me to sign a Quitclaim Deed to transfer all my rights, title, and interest to him. By signing this document, does this mean that I will get nothing from the house when he sells? Is there anything I can do to make sure that I am not getting "messed over" in this situation?

Brette's Answer: If the court awarded him the house, then he is the only one who would profit from the sale. Signing the quitclaim is the step you need to take to comply with the court order. If you wanted your share of the equity in the house, you needed to have asked for that during the divorce case. You should have an attorney review all the paperwork with you if you are confused or unsure.

Can he tell me what to do with the profits if he signed the quitclaim?

Christy's Question: I got the house in the divorce. The deed is now in both mine and my present husband's name. My ex was ordered to make mortgage payments as child support. The house is currently up for sale and my ex is trying to make me put some money from the sale into an account for our 2 children but I need the money to buy a new home. Can he do this since he has already signed away his rights and interest in the house?

Brette's Answer: If the court has ordered that you own the home, you can do anything you want with the proceeds of the sale.

Is he entitled to enter our home after signing the quitclaim deed?

Jane's Question: My ex signed a quitclaim deed transferring ownership to me in California. I can't refinance for another year. Does he have the right to enter the home?

Brette's Answer: If he's not on the deed, he's not an owner and cannot enter.

Can a quit claim deed keep me from losing my home if he's sued?

Lauri's Question: We are getting a divorce, but I probably can't qualify for refinancing for at least 5 years because I'm 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 husband to sign a quit claim deed to relinquish his rights to the house. 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.

Who owns the house if his attorney holds the quit claim deed?

Peggy's Question: My ex signed the quit claim deed, but insisted it be held by his attorney. The court granted this in a memorandum. The memorandum also stated his attorney was the trustee of this record. It has been over a month and his attorney has not filed the deed with the county record's clerk. It is invalid until it is recorded in the county records. If my ex dies, or loses his job, or the mortgage payments are not made, does his attorney then own the home? Can he sell it as part of estate, because he is the trustee?

Brette's Answer: The court's order would apply to your ex's estate. His attorney would never own the home.

Could he legally sell the home if I didn't sign a quitclaim deed?

Julie's Question: I didn't sign a quitclaim when we divorced and my ex-husband never refinanced the mortgage. Could he legally sell the house without my approval?

Brette's Answer: If you are listed on the deed, then no.

How do I get the deed in my name if he didn’t show up at the closing?

M's Question: My divorce was final 18 years ago. My ex signed the deed BUT wouldn't show up to the closing nor would he allow his attorney to accept payment. (I gave him $25,000.00 on account) I have a letter from his attorney telling him he must comply. Then my ex disappeared, no work record, no family contact, nothing. I'm 71 now and must get the house in my name to finalize my will. Help!

Brette's Answer: You should talk to your attorney who can bring a motion for the court to make this change.

© WomansDivorce.com | Updated March , 2023


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