In a divorce, all property owned jointly is typically divided. If you own real estate as joint tenants, one of you will normally have to give up title to the property. As both divorce and property laws are governed by the laws of your state, the process differs slightly from state to state. However, the rules are substantially similar.
Joint tenancy is a way of holding title to property derived from English common law. It means that two or more people share ownership of the property. When one of the owners passes away, the title to the property passes to the remaining joint tenants automatically. Spouses normally own real estate as joint tenants. Since any owner of property held as joint tenants can block a sale or transfer of the property, it is not a good idea for ex-spouses to hold real estate as joint tenants. The real estate should be a part of the marital property divided in the divorce.
The division of all the assets and debts of a divorcing couple is determined either through a settlement agreement or by a judge at a trial. The property is normally divided equitably. This does not always mean 50-50; it means what the law of the state considers fair. The real estate held as joint tenants will typically go to one of the parties. That person will also usually be responsible for any mortgages on the property. At the end of the divorce process, a court order will state which party receives the property.
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After the divorce is final, the party that does not receive the real estate normally transfers title to the other party by using a quitclaim deed. This type of deed is not a guarantee that the title is valid. A quitclaim deed just transfers any possible title or rights in the property to the other person without claims of validity. The party who received the real estate needs to file the quitclaim deed with the register of deeds in the county in which the property is located. In some states, such as Minnesota, the court order assigning the property to one of the parties must also be filed with the register of deeds.
It is possible to change co-ownership from joint tenancy to another form of ownership in a divorce. Speak to a lawyer in your state about your options as it should only be done in unusual circumstances. If the spouse who was not granted the property refuses to transfer title, you can ask the court to find him in contempt of court. The party who was not assigned the mortgage is still legally responsible for it unless the other party refinances the property. If the party assigned the mortgage does not pay it, both parties can be sued. However, the innocent party can normally seek indemnification from the other person.