- Who gets the marital home or other shared property in divorce?
- How does the state you live in impact who gets the house?
- What happens to a mortgage in divorce?
- How do you update a house title after divorce?
- Transferring a house title to your ex-spouse
- Removing your ex-spouse from your house title
- 4 tips for managing a mortgage during a title change
- FAQ
In a divorce, the marital home is often the largest asset. Deciding who gets the home and what to do with the property title after divorce is a complex process.
Who gets the marital home or other shared property in divorce?
The manner in which marital property is divided in a divorce can vary depending on the state where you live and whether you have a prenuptial agreement. In some states, marital property is divided equally between spouses. In others, it may be divided based on factors such as each spouse's income and contributions to the marriage.
How does the state you live in impact who gets the house?
The state you live in can have a significant impact on your property division, including your marital home. In the United States, there are two primary types of property distribution laws that states follow: equitable distribution and community property.
Equitable distribution
In states that follow the principle of equitable distribution, marital property is divided fairly but not necessarily equally in divorce.
Among other things, the court will look at each spouse's income and earning potential, how long the couple has been married, and the marital contributions made by each person to make sure the split is fair.
This means that in an equitable distribution state, it's possible for one spouse to receive more than 50% of the marital home or other shared property.
Community property
In states that follow the principle of community property division, marital assets are generally divided equally between spouses. In these states, each spouse would typically receive 50% of the marital home or other shared property.
What happens to a mortgage in a divorce?
When a couple divorces, the fate of their mortgage hinges on a number of factors.
- If both spouses are listed on the mortgage, one spouse may choose to keep the house and take over the mortgage payments while the other spouse is removed from the loan.
- If neither spouse can afford to keep the house, or they simply don't want it, they may choose to sell it and split any profits (or losses) according to their divorce settlement agreement (after first paying off the mortgage).
- In some cases, one spouse may agree to let the other keep the house in exchange for other assets or compensation.
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What Should You Do With Your Marital Home in Divorce? Explore Your Options.
How do you update your house title after a divorce?
After a divorce, updating the house title is an important step toward making sure ownership of the property is properly transferred or updated.
Two primary options exist for updating a house title after a divorce: transferring the title to your former spouse or removing them from the title altogether.
Transferring a house title to your ex-spouse
Transferring the house title to your ex-spouse involves signing over ownership of the property to them. This can be done through a quitclaim deed, which is a legal document that transfers ownership of real estate between parties. The quitclaim deed should be filed with the county clerk's office where the property is located in order to update the official records.
If you have a mortgage, you'll want to make sure your name is removed from that. Otherwise, you could be liable for payments even if you're not living in the home.
Steps to take
Transferring your house title to an ex-spouse is a meticulous process but certainly feasible with the right guidance. Here’s a step-by-step guide to help you navigate the process successfully.
- Make an initial agreement: This is the first step. Both parties agree to the transfer of the house title. The transfer should be part of the divorce settlement, outlining specific details about what will happen to the property.
- Prepare the quitclaim deed: Even if your transfer is mentioned in your divorce settlement, you’ll need a deed to transfer the property. A quitclaim deed is used to transfer ownership of property and should include all necessary details of the property such as legal description, name of the grantor, name of the grantee, and the date of transfer.
- Sign the quitclaim deed: Once the deed is prepared, sign it in the presence of a notary public. The notary will verify the identity of the parties and witness the signing of the deed to ensure legitimacy.
- Record the deed: File the signed and notarized quitclaim deed with your county clerk’s office. This official record updates the ownership of the property.
- Remove your name from the mortgage: If your home still has a mortgage, this is a vital step. Contact your lender to remove your name, and be prepared to give them a certified copy of your filed quitclaim deed. The lender may also require your ex-spouse to requalify for the mortgage solely in their name.
Removing your ex-spouse from your house title
Removing your ex-spouse from the house title involves filing a new deed that removes their name from ownership of the property. This can be done through a warranty deed or a quitclaim deed, depending on whether there are any outstanding liens or other issues related to the property.
Once again, this new deed will need to be filed with the county clerk's office to update the official records.
Steps to take
Removing your ex-spouse from the house title post-divorce is a straightforward process. Follow the steps below to make sure your title is updated correctly.
- Review your divorce decree: This document contains the specifics of property division and will guide your next steps. The decree often outlines who retains ownership of the marital home so you’ll need to be certain you’re following the process it outlines correctly.
- Prepare and sign a quitclaim deed: This is a deed transfer instrument that releases your ex-spouse’s interest in the property without stating any ownership claim. The deed should include the legal description of the property, the full names of the parties, and each party’s signature. You’ll also want the deed notarized.
- File the quitclaim deed: Once signed, file the quitclaim deed with the clerk’s office where your property sits. This makes the transfer public record. You’ll need to pay a filing fee for this service, and you’ll probably need at least three certified copies of the filed deed.
- Update your mortgage, If there’s an outstanding mortgage on the property, inform your lender immediately about the title change. You may need to refinance or requalify for the mortgage solely in your name.
Read: Property Rights in Divorce: Options for the Marital Home
4 tips for managing a mortgage during a title change
Contact your lender
Changing your home’s title does not automatically change the mortgage, so you’ll need to reach out to your lender immediately. The longer you wait, the more complicated it gets.
Prepare for refinancing
Removing a name from your mortgage typically involves refinancing. You’ll need to qualify for the mortgage on your own merit, so make sure your financial ducks are in a row. Prepare for income verification, a credit check, and debt-to-income ratio analysis.
Apply solo
Apply for the new mortgage, and wait for your lender’s response. This step could take some time, so patience is key.
Confirm changes
Once you’re approved for your new mortgage, ensuring your monthly payments and total loan amount are accurate is paramount. Also make sure you confirm that your ex-spouse’s name is nowhere to be found on the new mortgage. If it’s there, get it removed, or they could claim an ownership interest in the property.
FAQ about house titles after divorce
What is a quitclaim deed, and should I get one?
If you want to transfer property ownership from one person to another, a quitclaim deed may be the way to go. This legal document contains language specifying the transfer of ownership. Notably, if there are any liens or other issues with the property, they will not be resolved through a quitclaim deed.
Whether you should get a quitclaim deed depends on your situation. If you are transferring ownership of a property to someone you trust and there are no outstanding liens or other issues with the property, a quitclaim deed may be sufficient. For example, if you are transferring ownership to your spouse during a divorce settlement, and you both agree on the terms of the transfer, a quitclaim deed may be appropriate.
What is the difference between a quitclaim deed and a warranty deed?
|
Quitclaim Deed |
Warranty Deed |
|
Transfers the grantor’s rights in a property with no guarantees |
Transfers grantor’s rights in a property with full assurances that the title is clear and free of liens |
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Provides minimal protections for grantee |
Provides strong protections for grantee |
|
Less expensive option |
More expensive option |
|
Fast process |
Longer process, as title search is required |
How do I file a deed with the county clerk?
- Locate the clerk’s office: Especially in large counties, clerk’s offices may have different departments and branches. Make sure you find the deed recording location.
- File the original deed: You cannot file a copy with the clerk’s office. Make sure the deed is completed and signed before filing.
- Pay the fee: Every clerk will require a fee to file your deed. The fee varies, but you can often find it listed on the clerk’s website. If you need certified copies of your filed deed, you’ll need to pay for each of those as well.
Can I sell my house during my divorce process?
In most cases, both spouses have an equal right to the marital property, including the family home, until a final divorce settlement is reached. This means that neither spouse can sell or transfer ownership of the property without the other's consent or a court order.
However, there are some situations where selling the house in the middle of a divorce case may be possible. For example, if one spouse has been awarded exclusive use and possession of the home as part of temporary orders during the divorce proceedings, they may be able to sell the house with court approval. Under no circumstances, however, should you try to sell your marital home during divorce proceedings until you've been given permission by a judge.
Selling your marital home during a divorce should never be done without explicit permission from a judge. This holds true even if market conditions favor a sale. There could be legal pitfalls from the court if you do try this, including loss of assets when the divorce is finalized.
What if my spouse refuses to sign the house over to me?
If your spouse refuses to sign the house over to you during a divorce, there are several options available, depending on your circumstances.
Assuming the house is marital property and subject to division, one option may be to negotiate a settlement agreement that outlines how the property will be divided. This could involve agreeing on a buyout amount so one spouse takes full ownership of the home. Or, it could involve selling the home and dividing any proceeds according to the terms of the settlement agreement.
If negotiations fail and your spouse still refuses to sign over their ownership interest in the home, you may need to seek court intervention. This could involve filing a motion with the court asking for an order requiring your spouse to sign over their interest in the home or allowing for the sale of the property.
If your spouse refuses to sign over the property, follow these steps:
- File a motion: If your spouse refuses to sign over the house even after the court has ordered them to do so, you need to file a motion with the court asking them to intervene. In this motion, you’ll need to include evidence that the court ordered the transfer and your spouse has refused to comply.
- Attend a hearing: For a matter of this importance, a judge will likely require a hearing where they will attempt to understand why your spouse has failed to follow the judge’s prior order.
- Court-ordered transfer: If the judge sides with you, they’ll order your spouse to sign over the property to you. They may even require it to happen at the hearing to make sure the action is carried out.
At Hello Divorce, we're committed to helping people before, during, and after their divorce process. We offer many resources, a la carte services, and online divorce plans. To learn more about what we offer, schedule a free 15-minute phone call with an account coordinator.
