Divorced but Name Still on Deed

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“Divorced but Name Still on Deed! It takes a court order for a divorce to take place (a judgment or order). A divorce decree divides the assets of your marriage, and each spouse receives the property awarded to them by the decree. Divorce decrees rarely transfer property to or from your former spouse. They describe how the assets should be divided. It is, therefore, up to you and your former partner to determine how the assets should split.”

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Divorced but Name Still on Deed

The property should break up as described in the divorce decree if you have recently gone through a divorce. While different assets pass differently, all real estate passes via a deed. Divorced spouses should sign a deed dividing their real estate among themselves at the time of divorce.

If the former spouses fail to divide their property at divorce, they will face problems in the future. Several years pass, the ex-spouses remarry new spouses, and life continues. Suddenly, one spouse decides to sell or refinance the home, only to discover that the ex is still on the deed.

As long as you act quickly, you can prevent future problems, and you will not have to track down your ex-spouse later to get them to sign the deed.

 

A Brief Overview of Deeds

To understand how the quitclaim deed works in divorce cases, it is essential to understand a few basic terms:

  • Real estate ownership passes through a legal document.
  • Grantor or transferor. Those who transfer ownership of their real estate interests.
  • Grantee or transferee. Transferring an interest in real property to another party.
  • Quitclaim deed. Deeds that transfer real estate without guaranteeing the seller’s title. Quitclaim deeds are often used in divorces since the grantee is the grantor who owns the property.

 

Divorce and Dividing Real Estate: Step-by-Step Guide

How to remove ex spouse from deed? Following are the steps for removing your ex-spouse from a property deed if you are going through (or have already gone through) a divorce:

  • Reviewing the divorce decree is essential to determining who gets the property in a divorce.
  • Find out what the previous deed says about the property.
  • Transfer the property according to the divorce decree by creating a new deed.
  • To record the new deed, submit it to your local land records office.
  • Keep a copy of the recorded deed as proof of ownership.

 

When Your Name is not on a Mortgage but on a Deed

Some may wonder when your name is not on a mortgage but on a deed. A deed with your name indicates ownership interest in the home/property. In California, there are several ways to own real property:

  • Owned solely
  • Common-law tenants
  • Co-tenants
  • Survivorship joint tenants
  • Tenants-by-the-entirety

Married couples generally own their real property as tenants by the entireties. This means that their interest in the property is indivisible, and if one spouse passes away, the other spouse automatically inherits the property. In other words, if your name is on the deed, you are tenants by the entireties, and if one of you dies, the other owns the property entirely.

The mortgage loan is not your responsibility if you are not on it for whatever reason. However, if your spouse passes away, you will receive your spouse’s interest in the property. However, if you fail to make your mortgage payments, the lender can foreclose your house and evict you.

 

The Use of Quitclaim Deeds in Divorce

What if wife’s name not on house deed divorce? Ex-spouses may transfer property using various types of deeds. The warranty of title distinguishes these deeds they provide.

Using a special or warranty deed, the spouse who is leaving can convey the property with a warranty of title to the other spouse. However, unless required by the divorce decree, most spouses will not provide a warranty of title to the other spouse when dividing property after a divorce.

How to remove ex wife from deed? In divorce, the goal is simply to remove the ex-spouse from the deed to the property because the quitclaim deed form provides no warranty of title. It is more of a release of the property than a conveyance when dividing property in divorce. If the ex-spouse no longer owns the property, they will give the other spouse a quitclaim of ownership.

Spouses in states like California and Florida can transfer property without warranting title using a quitclaim deed. Some states, such as Texas, recognize a similar deed without a warranty. The goal of any of these forms is to transfer property without creating an obligation to provide a warranty of title.

 

Identifying the Owner of Your Home

According to the type of ownership interest that they elected when they bought the house, whoever shows up as the property owner or owner owns the home. As a result of the mortgage lender’s secured interest, they can act against the property and sometimes against the mortgagee if the mortgage does not arrive on time.

Regarding property settlement, the property belongs to the people listed on the deed. However, you need additional steps to split equity in the home or determine what happens if one party wishes to remain. The following options are generally available to divorced couples in California:

  • According to the property settlement agreement, sell the property and divide the proceeds;
  • If one spouse will reside in the property, refinance it in the name of that spouse, and have the other spouse execute a quitclaim deed on behalf of that spouse;
  • As long as one spouse resides in the property, no change to the mortgage or deed needs to occur.

A parent with primary custody of the children from marriage often continues to reside in the marital residence to ensure the children remain in the same school district, and the other parent pays the mortgage through court-ordered support.

Quitclaim deeds release ownership to the spouse who does not live in the house when refinancing.

A non-on-the-mortgage spouse is not required to pay the mortgage. However, the mortgage lender may foreclose on the house if the mortgage payment is late.

 

Holder of a Mortgage vs. Holder of a Title

The title deed is the method of transferring ownership of an asset such as real estate. The title of a vehicle, such as a car or a boat, is the method of transferring ownership of a vehicle.

Having a lien on a vehicle prevents you from owning the title. When you want to sell your vehicle, you cannot do so until the loan has been paid off and the lender has provided you with the title. As long as the loan is repayable, the lender retains the title.

You do have the deed if you owe money on a mortgage, but the mortgage company has a lien on your property if you owe money on the mortgage. Until the sale occurs, you can still sell your real estate without satisfying those liens, and you receive the remainder from the seller’s payment after all liens are satisfied.

 

How Much of Your House Does Your Spouse Get If It’s In Your Name?

Even if the house is in your name, your spouse may get half if you divorce. That depends on the unique financial situation of the couple. Unlike community property states, California offers equitable distribution, which means divorcing parties receive an “equitable” share of the marital property, not an equal share.

 

Divorce Property Ownership: Fractional and Full Interests

Divorced but name still on deed spouse dies? The ex-spouse’s interest in the property appears to be their entire interest, so the deed should transfer the entirety of the property to the spouse keeping it.

How to remove a name from a deed after divorce? A deed should include the entire property. Some ex-spouses transfer only a one-half interest in the property, thinking this will transfer the ex-spouse’s interest. However, this is not how all states deal with real estate co-ownership. An ex-spouse who no longer owns the property should sign a quitclaim deed transferring ownership to the spouse who will maintain it to prevent future title issues.

If the quitclaim deed takes place before the divorce formalizes, both spouses must sign it. In addition to preventing questions about homestead or community property rights, having both spouses on the deed assures third parties there are no additional consents required to transfer the property.

 

Divorced but name still on deed spouse dies

What if divorced but name still on mortgage? If a couple that owns properties together divorces, the court will issue an order of judgment, sometimes called a divorce decree. The decree divides marital assets but doesn’t transfer real estate ownership from one person to another. Many couples must be aware that they must seek the renewal of their deed if one will be the property owner and live within it while the other moves to another location. This could cause problems in the future.

Let’s say you got married to someone who was married previously, and then you have moved into the house that the couple shared before with their ex-wife. You and your spouse live in the home for several years after the marriage and then eventually pay off the house in the total amount.

In a different scenario, you and your spouse decide to refinance your mortgage on the property you’ve shared for years. The deed is still in his ex-wife’s name once you try to conclude an actual estate transaction.

 

The Quitclaim Deed References The Divorce Decree.

Does a divorce decree override a deed? In addition to referencing the divorce decree, it is good practice to include a reference to the divorce decree in the deed. This records that the property split. Including this information in the chain of title may be helpful when trying to sell or refinance the property.

 

The Quitclaim Deed References The Divorce Decree.

 

The division of property between the spouses is part of a divorce judgment. If both spouses own any part of that property, the non-winning spouse must sign a quitclaim deed to transfer their interest to the winning spouse.

 

Executes A Quitclaim Deed In Your Divorce Judgment Or Settlement Agreement.

It may or may not specify that your former spouse executes a quitclaim deed in your divorce judgment or settlement agreement. The judgment will outline the property division or incorporate the settlement agreement (if you have one).

Generally, each party must take all actions necessary to divide the property, including quitclaim deeds for real estate. Steps must still be taken to transfer title to the property, even if there is no mention of this in the judgment or agreement.

 

Your Ex-Spouse Must Sign A Quitclaim Deed Before You Can Get A Court Order.

If your former spouse doesn’t sign a quitclaim deed for the property awarded to you, you will have to go back to court for a court-ordered quitclaim deed.

  • You can send your ex-spouse to jail until they sign a quitclaim deed for contempt of court;
  • Rather than using a quitclaim deed, issue a court order transferring the property.
  • Depending on your state’s laws and common practice, the court will use one method.

 

Procedures in Court

A court document must appear to bring the matter before the judge again, regardless of your state. There is no reason to hold your ex-spouse in contempt of court if they fail to comply with the divorce judgment, usually referred to as a Motion to Enforce Divorce Judgment, a Petition to Compel Quitclaim Deed, or something similar.

Upon filing the motion or petition with the court, the judge will schedule a hearing date, provide you with a hearing notice, and a copy of the papers to your ex-spouse (or their lawyer).

You should bring the unsigned quitclaim deed to court with you. There is a requirement that the judge finds that:

  • In the divorce judgment, you got the property;
  • You have received a quitclaim deed from your spouse transferring the property to you.
  • There is no signature on the deed from your spouse.
  • Judges often order ex-spouses to sign quitclaim deeds in court, and they allow them to explain their lack of signing.

 

Consequences

After filing the quitclaim deed, one of three things can happen:

  • You and your spouse must sign the deed before filing it with the appropriate authority (usually a county clerk).
  • Using a court order instead of a quitclaim deed is possible even if your ex-spouse refuses to sign.

 

FAQS

 

Divorce property division: how does it work?

According to the Equitable Distribution Law, a divorce court must determine the amount of property that should be divided equitably (not always equally) between the spouses. Both spouses must report their income and any debts to the court.

 

Equitable distribution: what does it mean?

In equitable distribution, the property is reasonably divided between the two spouses, as the court considers possible. When marital property is divided equitably, the property is split equally between the two spouses. This is not a guarantee, but it is usually the case.

 

When a couple divorces, is it possible to divide the property?

When a couple divorces, there are two types of property. Marital property is the property the couple purchased during their marriage. A separate property is a property you owned before you married your spouse or a gift you received from someone else that did not belong to your spouse. Marital property may fall between the spouses.

 

Marital property: what is it?

The property each spouse purchased during the marriage is considered marital property. No matter which name is on the title, it is still the wife’s right to some of the home’s value if they were to divorce if the husband owned the house but the wife did not.

 

Bottom Line

A couple’s real estate is usually their greatest asset. And how it splits when they divorce may be one of the most important financial decisions they make, along with how pensions split and whether they should continue to give each other financial support.

Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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