Divorces frequently include property division. Before a divorce and maybe even before contacting a divorce attorney, you and your spouse may verbally agree how to divide property. The two of you may even sign quitclaim deeds to each other conveying real estate before or during the divorce process. Although deeding property prior to the entry of a final divorce decree may seem like a good idea in theory, there may be numerous reasons to postpone the conveyance until a divorce has been finalized.
Although most real estate conveys by warranty deed, particularly between third parties, quitclaim deeds are frequently used when one spouse, or former spouse, deeds to the other. The difference being that a quitclaim deed offers no warranties or assurances that title to the property is clear or free from liens or other encumbrances. A warranty deed warrants title except as to exclusions stated in the deed. Usually, however, you and your spouse know what encumbrances or title defects exist against the property, if any, and would be willing to accept a quitclaim deed. Quitclaim deeds generally transfer property more expeditiously and with less expense since exclusions contained in a warranty deed may need to be verified by a title search or search of the county's land records.
During a divorce, you may become aware that your wife's assets are greater than you realized. She may have purchased property and made investments in her own name, of which you were unaware. If this evidence is disclosed during divorce proceedings after you have quitclaimed property to her, you may feel shammed and ask for compensation or relief through the court, including reversal of the deed giving property back to you.
Your husband might have a volatile temper or be a master manipulator, such that you are afraid not to do his bidding or have trusted him completely to handle business affairs. Due to either of these situations, you may have signed whatever document he placed in front of you. If you are able to prove in court that you were forced or coerced into signing a quitclaim deed, the court can order the deed set aside and ownership reversed.
Often in a divorce action, the courts seek to equitably divide assets between a husband and wife. Until this property division has been completely determined by a final divorce decree, you might find it difficult to refinance or deed property to a third party in your sole name. A closing attorney or title company might require your wife’s signature on the deed or mortgage, even if you have a quitclaim deed from her. Under certain circumstances, the court can order a deed set aside if it can be proved that the conveyance was detrimental to either you or your wife.
In some states, if your spouse owns property and lives there as his residence, you also have a homestead interest in the property or the right to live there. This remains true whether or not your name is on the deed or you have quitclaimed the property to him. Even if an agreement regarding distribution of the property has been approved by the court, until you are actually divorced, both signatures will likely be required to sell or mortgage the property.
Liens or Encumbrances
Even when your spouse quitclaims property to you, a mortgage made by both of you does not go away. The court may have ordered your husband to make the payments but if payments are not made, the lender can still foreclose the mortgage unless the legal proceeding is in a jurisdiction that prevents it. Both you and your husband remain responsible for the debt until paid or you are released from liability.
References & Resources
- Divorcenet.com: Problems of Hidden Assets in Michigan Divorce Litigation
- Wilkinson & Finkbeiner, California Family Law Blog: Voluntary Execution of Quitclaim Deed During Marriage May Be Set Aside
- Old Republic National Title Insurance Company: Homestead Sweet Homestead
- Washington Post, Real Estate: Quitclaim Deed Transfers Ownership, Not Loan Responsibility
- LawInfo, Legal Simplified, Lawyers Verified: Quitclaim Deeds
- Ryan McVay/Digital Vision/Getty Images