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Divorces can be a complicated process because of the amount of details that need to be considered. All the property and assets in the marriage need to be divided. Real estate counts as marital property. A decision needs to be made regarding that property.
There are a few ways this might be handled during the divorce proceeding. One is to sell the property. In this case, both parties would relinquish the right to the property. Another option is for one of the spouses to refinance the property’s existing mortgage. When the other spouse is released from the mortgage, their share of the property goes to the first spouse.
To convey a share in a property to another person, a quitclaim deed is used. After the deed has been signed and notarized, it must be brought to the county courthouse in the real estate property’s county. After this process has been completed, it’s officially established that one person owns the entire property. These are some reasons why you might want a quitclaim deed.
Statute of Frauds
Every state in the US has adopted some form of the Statute of Frauds. One of the provisions is that transferring a person’s interest in a piece of land must be done through writing. This helps to establish concrete evidence regarding a person’s interest, so multiple people don’t claim to own the same land.
Almost every divorce case reaches a settlement. When you’ve negotiated a compromise, both parties will sign the final settlement agreement. This agreement is then filed with the local court. One part of the settlement will be information about how interests in real estate will be addressed. But the divorce decree doesn’t transfer the actual land. It only establishes intent to transfer the land. For the transfer to be legally binding, you need a deed.
What are quitclaim deeds?
Quitclaim deeds are legal contracts that memorialize the transfer of one party’s ownership interest in a piece of real estate. By that virtue, it satisfies the Statute of Frauds requirement that real estate transfers be done in writing. In a quitclaim deed, the “grantor” is the individual who completes the interest transfer, while the “grantee” is the individual who has the interest transferred to them.
When do you use a quitclaim deed?
A quitclaim deed will often be used in the title transfer of land between family members. These deeds are different from other property deeds. With a quitclaim, there aren’t any warranties, liens, or encumbrances. When you get married, it’s common for property owners to add their spouse’s name to a property title. A quitclaim can also be used in divorces, when a party’s name needs to be removed instead of added.
One thing to remember is that a person’s transfer of their property interest isn’t the same as a release from a mortgage. Before a person can be released from their mortgage, the property needs to go through a refinancing. The mortgage has to be paid off.
If one of the parties involved in a divorce doesn’t get a quitclaim deed, but they decide years later that they want to sell the property, they may run into trouble. The property is still technically owned by both parties. This means that both spouses need to give permission for the property to be sold. Alternatively, the ex-spouse will need to complete a quitclaim deed to convey the title clearly to the current owner.
For this reason, it’s important to get your quitclaim deed as soon as possible. Once the deed is obtained and recorded, you don’t need to worry about jointly owned properties anymore. Remember that a divorce agreement cannot actually function as a transfer of property. The paperwork for the title transfer needs to be separate from the divorce.
Refusal to Transfer Quitclaim
If your divorce settlement states that one party intends to transfer their property interest through a quitclaim deed, but the person then refuses to file the quitclaim paperwork, the matter can be brought before a judge.
The judge will review the finalized divorce settlement. A divorce settlement is a legally binding contract. Both parties need to adhere to the terms outlined in it. The divorce settlement should be enough proof to make the judge compel the spouse to complete the quitclaim deed.
You should talk to your attorney about refinancing your properties and obtaining a quitclaim deed. They’ll be able to walk you through the steps necessary for the process and help negotiate with your spouse.