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When two people who own real estate get divorced, something has to happen to that property. Ordinarily, it’s either sold, and both parties relinquish any right, title or interest in it, or an existing mortgage on the property is refinanced by one of the parties. In return for being released from the existing mortgage, one party conveys his or her interest in the property to the party who undertook the new obligation. That conveyance is ordinarily through a quitclaim deed. After it’s signed, notarized and delivered, it needs to be taken to the courthouse of the county that the property is situated in to be recorded or registered. Once that’s done, the world is on notice that you own the property. Here’s why you want that deed.
The Statute of Frauds
Every state has adopted the Statute of Frauds in one form or another. One of its provisions is that a contract for the transfer of an interest in land has to be in writing. This requirement can operate to eliminate numerous claims to the same piece of land. Nearly all divorce cases settle, and when a compromise has been agreed upon, the parties sign off on a settlement agreement that’s filed with the court. When the parties jointly own real estate, the settlement agreement will provide for how interests of the parties to the land are to be addressed. The marital settlement agreement doesn’t operate to transfer an interest in the land though. Only a deed will do that.
What is a quitclaim deed?
A quitclaim deed memorializes the transfer of an ownership interest in real estate, and by virtue of that, it satisfies the requirements of the Statute of Frauds. The grantor is the person who transfers the interest, and the grantee is the person to whom that interest is transferred.
When are quitclaims used?
Quitclaim deeds are often used in land title transfers involving family members. As opposed to some other deeds, no warranties come with them as to merchantable title or any liens, clouds or encumbrances thereon. Upon a marriage, a property owner might want to add his or her spouse to the title of a property. Quitclaims might also be used in the case of a divorce when a party’s name is to be removed from the title to a property. Remember though, the mere fact that a party may have transferred their interest in a property doesn’t operate to release him or her from a mortgage. The property must be refinanced, and the mortgage must be paid off before he or she can be released from it.
If a party to a divorce fails to obtain a quitclaim deed and wants to sell the jointly owned property 15 or 20 years later, he or she will need that quitclaim from the former spouse in order to convey clear title. That’s why it’s far better to obtain and record or register a quitclaim deed sooner rather than later. If the person who previously agreed in a marital settlement agreement to transfer an ownership interest by quitclaim later refuses to do so, judicial relief is available. Eliminate that issue from arising by refinancing as soon as possible and getting the quitclaim deed.
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