When one spouse receives the marital home in a divorce decree, it does not automatically mean that the house is now hers. The decree gives her the right to own it. Extra steps are usually necessary to transfer title into her name alone. The most common way to achieve this is with a quitclaim deed, transferring one spouse's ownership interest in the property to the other.
Nature of Deed
Although a quitclaim deed transfers one individual’s interest in a property to someone else, it doesn't define what that interest is or make any promises that the interest even exists. For example, an individual can legally sign a quitclaim deed, ceding his interest in the White House to someone else. However, because he actually owns no interest in the White House, the person who receives his interest gets nothing. Quitclaim deeds are usually only appropriate in situations where one family member is transferring an interest in property to another family member. In divorce situations, the receiving spouse knows her ex has an interest to transfer, because they most likely bought the home together.
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A quitclaim deed does not make any warranties or promises that there are no liens against the property. In most divorce cases, there is a lien in the form of a joint mortgage. A spouse who is ceding his marital interest in a property might not want to sign a quitclaim deed until his name is removed from the joint mortgage. Otherwise, he still has a legal obligation to make the payments. The best way to accomplish this is by signing the deed at the same time the receiving spouse refinances the property, taking a new mortgage in her sole name to pay off the existing joint mortgage. When a spouse signs a quitclaim deed, he can’t take his interest in the property back or "undo" the deed if the receiving spouse does not make the payments. If his name is still on the mortgage, he is liable for paying for something that he no longer owns any part of.
A spouse can’t force her ex to sign a quitclaim deed and give her his interest in the home without a court order or divorce decree ordering it. However, if the decree specifies that she is to receive the home, this is legally binding. Her spouse must cooperate by signing the deed. If he does not, the spouse who is to receive his interest can take him back to court. The judge will again order him to cede his interest according to the terms of the decree, and can even order prison time for contempt if he continues to refuse.
Divorce laws vary from state to state, and some states have legislation in place that allows a divorce court to transfer ownership of property without the necessity of a deed. Maryland added such a law to its statutes in 2006, but a divorce court can only transfer title to property that served as the marital home and with the written consent of the mortgage holder. In this case, the receiving spouse would file the decree with the county clerk instead of a deed.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.