As part of a divorce proceeding, the court issues a divorce decree (also called a judgment or order). The divorce decree divides your marital assets. Each spouse gets the property awarded to that spouse in the divorce decree.
In most cases, a divorce decree does not transfer property to or from your ex-spouse. The decree only describes how the assets should be divided. It is up to you and your ex to divide the property as described in the divorce decree.
If you have gone through a divorce recently, it is important to make sure that the property is divided as described in the divorce decree. Although different assets are transferred in different ways, all real estate is transferred by deed. At the time of the divorce, the spouses should sign a deed to divide their real estate among themselves.
Former spouses that fail to divide their property at the time of the divorce create problems that will surface later. Years pass, the former spouses remarry new spouses, and life goes on. The spouses assume that the property has been divided. Then one of the spouses decides to sell or refinance the property and learns that his or her ex is still on the deed.
Acting quickly—while the information about the divorce is still fresh—gives you the best opportunity to prevent future problems. It also avoids the need to track down your ex-spouse and convince him or her to sign the deed at a later time.
This article discusses how to remove a spouse from title to a home or other property after a divorce. If the property has a mortgage, see Removing a Spouse from a Mortgage After Divorce for information about removing an ex-spouse from the loan.
A Step-by-Step Process for Dividing Real Estate After Divorce
If you are going through (or went through) a divorce, you must create a new deed to remove the ex-spouse from title to your house. Here are five steps to remove an ex-spouse from a property deed:
- Review the divorce decree to determine who gets the real estate.
- Obtain a copy of the prior deed to the property.
- Create a new deed to transfer the property as described in the divorce decree.
- Submit the new deed to the city or county land records for recording.
- Keep a copy of the recorded deed to show you own the property.
Using Quitclaim Deeds in Divorce
Several types of deeds may be used to transfer real estate to an ex-spouse. These deeds are named after the warranty of title they provide.
The spouse that is being removed could use a special warranty deed or warranty deed to convey the property to the other spouse with a warranty of title. But when dividing property after a divorce, most spouses will not want to provide a warranty of title to the other spouse (unless required by the divorce decree).
Because a quitclaim deed form provides no warranty of title, it is the most popular deed form to remove an ex-spouse. When dividing property in divorce, the goal is to simply to take the ex-spouse off of the title to the property deed. It is more of a release of the property than a conveyance. The spouse that will no longer own the property will release—or quitclaim—his or her interest to the other spouse.
In states like California and Florida, the spouses may use a quitclaim deed to transfer the property without warranting title. Other states—like Texas—recognize a similar type of deed called a deed without warranty. Whichever of these forms you use, the goal is usually to transfer property without creating any liability for warranty of title.
Dividing Ownership After Divorce: Full and Fractional Interests
When spouses jointly own property, they are each considered to have an interest in the entire property. To remove an ex-spouse, the deed should transfer the entire property—not just a one-half interest—to the spouse that will keep the property.
The entire property should be included in the deed. Some ex-spouses make the mistake of transferring only a one-half interest in the property, thinking this will transfer the ex-spouse’s one-half interest. But this is not how co-ownership of real estate works in all states. To avoid the risk of future title issues, the ex-spouse that will no longer own the property should sign a quitclaim deed conveying the entire property to the spouse that will keep the property.
Both spouses should sign the quitclaim deed, especially if the deed is being signed before the divorce is finalized. Having both spouses on the deed avoids questions about homestead or community property rights and assures third parties that no other consents are required for the transfer.
Reference to the Divorce Decree in the Quitclaim Deed
It is also good practice for the deed to reference the divorce decree. A reference to the decree creates a record that the property was divided as part of a divorce. For example, the deed dividing property on divorce may state:
This Quitclaim Deed is made to divide the property of the parties hereto pursuant to the Final Decree of Divorce issued by the 77th Judicial District Court, Freestone County, Texas, CV12-345-B, dated January 1, 2012.
When it comes time to sell or refinance the property, having this information in the chain of title can facilitate the sale or loan.
Frequently Asked Questions About Quitclaim Deeds and Divorce
Many divorcees have questions about how to use quitclaim deeds to straighten out ownership of real estate after the divorce. The following is a list of frequently asked questions and answers.
How do I remove myself or my ex-spouse from title to our former marital home?
To remove a person from title to real estate, you will need a deed. A deed transfers property from one or more person to one or more other persons. In the divorce contexts, both spouses will sign a deed transferring the former marital property to only one of the ex-spouses. The spouse that receives the property will continue to own the property. The other spouse has no interest in the property.
What type of deed should I use to transfer property to or from an ex-spouse?
There are several deeds you could use. In most cases, divorcing spouses will not want the liability associated with making a warranty of title. For these reasons, most ex-spouses transfer property to each other by quitclaim deed.
When should I sign a quitclaim deed transferring property to my ex-spouse?
The deed is used to transfer the property as required by the divorce documents. Only sign a quitclaim deed once there has been a final divorce decree and/or a settlement agreement approved by the courts. You may also require, as a condition of your transfer of the property to your ex-spouse, that you be released from the mortgage or deed of trust associated with any loan on the property.
Can my ex-spouse enter our home after he or she has signed a quitclaim deed transferring the home to me after our divorce proceeding?
No. Once the divorce is final and the home has been transferred to you by quitclaim deed, your ex-spouse is no longer an owner and has no right to enter the property other than by your invitation and consent.