Quitclaim Deeds and Divorce
At some point when discussing property division in your divorce, the term “quitclaim deed” may come up. Quitclaim deeds arise during divorce in the context of real estate — also called “real property.” The real estate could your home or another piece of real estate that you own. But what exactly is a quitclaim deed? How is it used in divorces?
What Are the Options for What to Do With Real Estate in a Divorce?
There are two basic options when it comes to real estate, including the family home.
- One of you can keep it
- You can sell it
You and your spouse can reach an agreement on how to handle real estate in a mediation, collaborative divorce, or even litigation. If you’re in a high conflict litigation and are unable to reach a decision, the judge will rule on what happens to the property.
What Is a Quitclaim Deed in a Divorce?
In divorces, sometimes we use a quitclaim deed to change from joint ownership to sole ownership. In other words, let’s say you and your spouse own your house together. Then, you reach an agreement (or a judge orders) that you will keep the house. We would likely transfer sole title to you via a quitclaim deed.
Real Property Title Basics
To understand the effect of a quit claim deed in a divorce or legal separation, it is helpful to understand the various types of ownership. Joint ownership by spouses will likely be in one of the following forms:
- Joint tenancy. You and your spouse own the property together. If one of you dies, the property automatically goes to the other. It is also often called joint tenancy with rights of survivorship. Joint tenancy can be used any time two or more people own property—it is not limited to spouses.
- Tenancy in common. This is also used when two or more people own property. If one of the owners dies, that person’s interest in the property goes to his or her heirs—not automatically to the other owner(s), as with the other two types of joint ownership.
Most married couples hold property as joint tenants. However, occasionally a married couple will hold property as tenants in common.
What’s the Impact of a Quitclaim Deed in Divorce?
A quitclaim deed in a divorce or legal separation gives one person sole ownership of the property. That means that person can sell or obtain a mortgage on the property without the approval, consent, or involvement of a former spouse. In addition, post-divorce, the sole owner is also able to give the property to anyone he or she desires via a will.
How Does a Quitclaim Impact an Existing Mortgage Post Divorce?
If you and your spouse jointly own real estate, the mortgage is often in both of your names. It’s important to know that in divorce, the ownership of the property and the debt owed for that property are two separate issues. A quitclaim deed changes property ownership, but it does not change how is obligated for the mortgage debt on that property. In other words, if you execute a quitclaim deed because it’s decided that your spouse is keeping the house, that alone does not remove your name from the mortgage.
How Do You Remove Your Name From a Mortgage Following a Divorce?
You should work through all of these issues with your divorce attorney, including the mortgage. Generally speaking, only the mortgage lender can remove one spouse’s name from the mortgage.
In almost all cases, the only way to get a spouse off of a mortgage is to refinance the mortgage in the name of the spouse that is keeping the property.
When refinancing is not possible, you should discuss with your lawyer and tax professional how best to address it.
Quitclaim Deeds vs Quick Claim Deeds
When you first hear “quitclaim deed,” like many people, you may mishear it as “quick claim deed.”
Let’s take a minute to explain one of the most often confused divorce legal terms.
There’s technically no such thing as a “quit claim deed” — the correct name is “quitclaim deed.” When people refer to “quitclaim deeds,” “quit claim deeds,” and “quick claim deeds,” they mean the same thing. That said, the confusion about the name is understandable. A person using a quitclaim deed is “quitting his claim” on a property — quickly!