22 Aug 16

Do I need a quit claim deed to transfer the property to me?

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If you are in the process of seeking a divorce or a legal separation, you likely have an array of questions. If you are like many people involved in a divorce or separation process, you and your spouse own real estate, most likely the marital residence. One significant question you may have is whether you need a quit claim deed to transfer title to a piece of real estate to you.

Definition of a Quit Claim Deed

A quit claim deed differs from a warranty deed. In the case of a warranty deed, title passes from one person to another with the express guarantee that it is free and clear of any defect. In other words, the person conveying title to another bears responsibility if any defect is found after the conveyance occurs. Title insurance usually is in place to cover such a situation.

A quit claim deed contains no such guarantee or warranty. Rather, a quit claim deed merely conveys whatever interest the grantor may have in a piece of real estate. No title search is undertaken. No title insurance is purchased. You take whatever interest your spouse had in the real estate, even if that interest is somehow impaired or subject to a lien. Because you likely were co-owners before the conveyance, your interest already was subject to a potential encumbrance.

When a Quit Claim Deed is Used

A quit claim deed commonly is used in cases involving divorce or legal separation. In those situations, both spouses usually have a legal interest in a piece of real estate, including the marital residence. With a quit claim deed, one spouse conveys whatever interest he or she has to the other.

Separation Agreement or Court Order

Before a quit claim deed can be executed by your spouse in your favor, there needs to be an agreement in writing or a court order addressing this issue. The settlement agreement or court order spells out that a certain piece of real estate is to be set aside to you. The agreement or order directs your spouse to take all necessary steps to accomplish this objective, which includes executing an appropriate quit claim deed.

Legal Basis for Quit Claim Deed

In the absence of a quit claim deed, the ownership of a piece of real estate remains unchanged. If you and your spouse are co-owners of that property, you legally remain co-owners in the absence of a duly executed and recorded quit claim deed. In the final analysis, you must have a quit claim deed executed by your spouse and filed with the register or recorder of deeds to validate your ownership in a particular parcel of real estate.

Quit Claim Deed Forms

A quit claim deed is not a complicated legal instrument. An attorney is likely to be able to provide you with a standard form quit claim deed. In addition, the local register or recorder of deeds is also likely to have quit claim deed forms available in that official’s office or online at the website for that office.

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