What Happens When a Judge Awards a Piece of Property in a Divorce Decree?

By Beverly Bird

Even if you and your spouse can't reach a settlement agreement so your divorce must proceed to trial, the division of marital property is always a process of give and take. Courts typically apportion assets so the value of everything you're awarded is roughly 50 percent of the total. You'll end up retaining some things and giving up others – most individual assets aren't literally scissored in half. This isn't the end of the road, however. After the judge issues the decree, you must tidy up the loose ends and see to the actual transfer of property.

Transfer of Ownership

Your first order of business is to transfer title of any property that was previously held in joint names. If you're keeping the marital home, your spouse can sign his interest in it over to you with a quitclaim deed. If you're giving him the car, he can take a copy of your divorce decree to the motor vehicle department in most states to authorize the transfer. You may have to sign off on the old title. If you're transferring retirement funds, most of these require qualified domestic relations orders, or QDROs, because federal law prohibits payment of benefits to anyone other than the earning spouse. These QDROs are highly complicated documents, requiring the approval of both the retirement plan administrator and the court, so you might need an attorney or an accountant to draft one and see to its implementation.

Encumbered Assets

Divorce decrees don't bind creditors and they don't affect the contract you signed with them. Therefore, when an asset acts as security for a mortgage or auto loan that's in both your names, the lender can pursue both you and your spouse for payment, even if only one of you actually owns the property after you've transferred title. The court will typically order that the spouse who is awarded the encumbered property refinance it into her sole name. This requires that you have sufficient income and a good credit history to qualify for the loan on your own. If you fail to do so, your spouse can take you back to court.

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Deferred Sales

Sometimes judges don't award all marital assets in a divorce. The court might order a deferred sale of certain property instead, if circumstances warrant it. For example, if you have a teenager who is just a few years away from high school graduation, the judge might defer sale of the marital home so your child doesn’t have to move and change school districts. In this case, your decree will include court-ordered details regarding who is to pay for what until the property can be listed for sale, and it will give the custodial parent exclusive possession of the home until that time. This eliminates the need for a quitclaim deed or a refinance.

Enforcement Issues

Your decree will probably include language giving the court continued jurisdiction to enforce its terms, and indemnification provisions as well. Indemnification language in your decree allows you to take your ex back to court if he doesn't do what he's supposed to under the order. In some states, if your spouse won't sign the quitclaim deed transferring the marital home to you, the court can sign it in his stead. If he won't turn over other property to you as ordered, the court can enter a money judgment against him for its value, and you can use the judgment to garnish his wages or place a lien against his other property. You have various avenues of recourse, depending on what the asset is.

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Is a Divorce Decree a Conveyance of Property?


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