The division of property is as much a part of the divorce as the divorce itself. If you were awarded any property, your spouse will likely have to sign a quitclaim deed.
Following is a guide to understanding what to do if your spouse refuses to sign the quitclaim deed.
A quitclaim deed is a legal document that transfers an interest in real property (house or land) from one person to another. As far as the legal language is concerned, you are considered the grantor, and your spouse the grantee. A quitclaim deed differs from a warranty deed in that it actually transfers the property with a guarantee of a clear title.
With quitclaim deeds, it’s important to understand that, when signing a quitclaim deed, in some cases it doesn't actually end your spouse’s interest in the property. For that, you will have to make arrangements with your mortgage company.
If your spouse refuses to sign the quitclaim deem there are a few options at your disposal:
Seek contempt of court. You can ask the court to enforce the decree by filing a contempt complaint. If it’s part of the final judgment, your spouse will have to answer the complaint. You can also have the court issue an order to have the quitclaim signed by the clerk of court who can sign the document on your spouse’s behalf.
Reexamine the divorce decree language. Sometimes the decree language is enough to act as a transfer of title. Look over the documents with your attorney to determine if this is an option.
File a motion. You can file a motion to enforce the decree. Obviously, this could extend your court time and you might incur additional court costs.
It might seem as if a quitclaim deed is a catchall for most of the property issues you might face during a divorce. Unfortunately, even if your spouse is cooperative, the quitclaim deed can be limited, in small or big ways:
No warranties or promises. The quitclaim deed doesn't exclude your spouse from responsibility for the mortgage payments. In essence, it’s a joint mortgage and must be handled accordingly (a quitclaim doesn't remove the borrower from the existing mortgage). Nor does the quitclaim remove any existing liens on the property. Conversely, a warranty guarantees a clear title. For some divorcing spouses, the quitclaim deed is a simple matter because the spouse was never on the mortgage, or didn't pay the majority of the household expenses.
Title companies are often reluctant to accept them. If you’re thinking of selling your home after the divorce, a quitclaim deed usually won’t be enough for title companies. It’s likely you will need to contact your spouse again for a signature to sign off on the property. That’s why warranties are often encouraged over seeking quitclaim deeds. Obtaining a mortgage liability release is also an option.
Because the quitclaim deed deals primarily with the interest of the other party in the property, a mortgage company doesn't recognize this. Even if you are able to get your spouse to sign the quitclaim deed, there still is the process of contacting your lender and determining your next step.
If you don’t want to sell your house outright, you could refinance it, which is another method of removing your spouse’s name from the loan.
A lesser-known option is to simply ask the lender to remove your spouse’s name. This is called a release of liability. A mortgage liability release legally removes your spouse from the mortgage. However, not all lenders or mortgage servicers offer this option. While lenders are not required to offer this services, they can consider it in the case of a divorce. Ownership can also be transferred using an assignment of mortgage.
An assignment of mortgage is a document that shows a transference of ownership (usually to another bank). Under what’s called an assumable mortgage, you can transfer ownership of your mortgage to someone else. In such cases, an assignment of mortgage can be filed.
With an assumable mortgage, the lender will request some evidence to show that you are able to handle the payments alone (bank statements or other financial documents might be requested).
Be sure to consult with an attorney to explore all of your options.
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