Of all the assets owned by a married couple, property can become the most contentious to divide during a divorce. If you or your spouse are interested in assuming ownership of your family home, you can do so with a quitclaim deed.
What is a quitclaim deed?
A quitclaim deed is the legal means used to transfer a person’s interest in real estate. Its name comes from the idea that a person is “quitting” their claim on a piece of property.
With a quitclaim deed, the spouse who intends to keep the home is given “valuable consideration” for the home, which can be money or something else of value. Ownership can also be transferred for “good consideration” — or payment that has no value, like gratitude.
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What kind of paperwork will I need?
To transfer ownership of your property, first visit your county recorder’s office to request:
- A quitclaim deed form. You’ll enter the date, the value of your home for consideration and a legal description and location of your property.
- A Preliminary Change of Ownership form. The spouse who is intending to keep the home completes this form.
How can I ensure that my forms are completed accurately?
To avoid rejection of your forms for incomplete or inaccurate information, you’ll need to:
- List the full name of the spouses involved in the transfer of property ownership.
- Identify the proposed property’s location, value for consideration and “legal description” — or property dimensions and boundaries.
- Sign the forms in front of a notary public, who will also sign them as a witness.
- Submit your completed forms to be recorded in the property’s county.
If you have specific questions about the forms or your property when completing them, seek the assistance of your family law attorney.
Ask an expert: What happens if I don’t sign a deed?
To remove a person from title on real estate after a divorce, both spouses will need to sign a deed. In divorce contexts, both spouses will sign a deed transferring the former marital property to only one of the ex-spouses.
In my experience, former spouses that fail to divide their property after a judgment is issued by a court will create potential problems that will cause headaches down the road. Many years may pass until a person decides to sell or refinance their property, only to learn that his or her ex is still on the deed.
Acting quickly after a divorce decree is issued by the court will give a person the best opportunity to avoid future headaches.
Does a quitclaim deed affect my mortgage liability?
Your mortgage liability is not transferred through a quitclaim deed. Whichever spouse gives up their interest in the home could still find themselves responsible for half of that property’s mortgage debt and any lien on the property.
What to do with your mortgage debt after a divorce
Will I need to pay a transfer tax?
When you transfer the title of your property with a quitclaim deed, the county in which the home is located may impose a transfer tax on both you and your spouse. The tax you’re charged will depend on your county, but it tends to be 1% of the home’s purchase price. Keep in mind that the county could reassess the value of your property at the time of transfer, resulting in higher property taxes for the spouse taking over ownership.
Ask an expert: How can I make the process go as smoothly as possible?
- Don’t deplete the asset. We use a standard order to prevent parties from damaging or borrowing against community assets, but people still do these things. I had a client whose spouse was still in the home while the divorce was happening. When we set a hearing to remove her from the home, she trashed it while he was at work. Eventually, all those extra costs got taxed against her by the court.
- Fight the system, not each other. The divorce process will take a huge cut of the family’s net worth, so both parties should fight together to preserve what they’ve got and think twice before going to court. Every time a lawyer gets involved, your bill goes up and so does the other team’s. That money is shrinking the pie you want to divide.
- Reassess your finances immediately. You’re going from one household to two. You need your own budget. Talk openly with your lawyer about what you can reasonably expect to be left with after the divorce and figure out how to live on it.
Seek the assistance of a professional
As with all real estate decisions, talk to your family law attorney, a tax professional or another expert to determine your specific responsibilities when transferring ownership of your property during or after your divorce.