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Quitclaim Deeds and Divorce

Contents

    Do I Need a New Deed?

    You might need a quitclaim deed or other type of deed if you or your ex-spouse received a home or other real property in your divorce. Through a new deed, the person who is not keeping the property can give his or her share of the property to the person who is keeping it. You need a new deed if both of your names are on the current deed or if the current deed is not in the name of the person keeping the property.

    For example, you need a new deed to transfer your share of the property if your ex-spouse got the house in the divorce, but both of your names are on the current deed. If your ex-spouse got the house in the divorce and only your name is on the current deed, you need a new deed to transfer the property. But if your ex-spouse got the house in the divorce and only his or her name is on the current deed, then you do not need a new deed.

    Your Judgment of Divorce will not change the names on a deed for you, and the judge will not change the names on a deed. The divorce and the property transfer are separate processes. You can use the Do-It-Yourself Quitclaim Deed (after Divorce) to get your quitclaim deed.

    What Is the Difference between a Quitclaim Deed and a Warranty Deed?

    What Is a Warranty Deed?

    You can use either a quitclaim deed or a warranty deed to transfer property. A warranty deed gives more protection than a quitclaim deed to the person receiving the property. In a warranty deed, the seller (or grantor) guarantees to the buyer (or grantee) that the seller owns the property and has clear title to it. If someone other than the seller has an interest or a right to the property, the seller will be responsible to the buyer.

    How Is a Quitclaim Deed Different from a Warranty Deed?

    A quitclaim deed does not do the same things as a warranty deed. A quitclaim deed does not make any promises that the seller owns the property or has clear title to it. A quitclaim deed only passes the interest in the property that the seller actually has, without any guarantee. The seller is not responsible to the buyer for a defect in the title.

    Should I Use a Quitclaim Deed or a Warranty Deed?

    It is common to use a quitclaim deed to transfer property in a divorce. People who have been married are likely to know more about the property than a stranger would. If you are the person keeping the property as part of your divorce, you and your ex-spouse may have bought the property together during your marriage, and you know that no one else owns the property. You may know for a fact that there is clear title. Or, you may be fine with receiving the property without clear title. In any of these situations, a quitclaim deed is an appropriate way to transfer the real property awarded to you in your divorce.

    However, if you have concerns about the title of the property, you may want to consider a warranty deed instead. Another option is for the person transferring the property to buy title insurance. The Michigan Legal Help website will not help you create a warranty deed. If you think you want a warranty deed, you may want to consider talking to a lawyer.

    What Do I Do with a Quitclaim Deed?

    You can prepare a quitclaim deed using the Do-It-Yourself Quitclaim Deed (after Divorce). If you are the person giving your share of the property to your ex-spouse, sign the quitclaim deed in front of a notary. Then give the quitclaim deed to your ex-spouse or your ex-spouse’s lawyer. You may deliver it by mail or in person, or someone else may deliver it for you.

    Property transferred in a divorce is usually exempt from county and state real estate transfer taxes. But in some situations, transfer taxes may be due. The person who is not keeping the property is responsible for paying these taxes, unless you agree to a different arrangement. Transfer taxes must be paid before recording the quitclaim deed. You can find out if transfer taxes will be due in the Do-It-Yourself Quitclaim Deed (after Divorce).

    If you are the person keeping the property, take the deed to the Register of Deeds and record it after your ex-spouse has signed it and delivered it to you. There will be a $30.00 recording fee.

    If you prepare a quitclaim deed using the Do-It-Yourself Quitclaim Deed (after Divorce), detailed instructions on what to do next will print out along with the deed.

    What If My Ex-Spouse Doesn’t Give Me a Quitclaim Deed?

    If your ex-spouse was supposed to give you a quitclaim deed but did not do it, you can file a motion asking the judge to enforce the Judgment of Divorce. The judge could fine or even jail your ex-spouse for disobeying the Judgment. If your ex-spouse still does not give you a quitclaim deed, you may take your Judgment of Divorce to the Register of Deeds and record it in place of a quitclaim deed. This is another way to complete the property transfer, but it means your whole Judgment of Divorce is part of the property transfer records.

    Some people don’t record the Judgment because they want to keep it more private. If you record your Judgment of Divorce instead of a quitclaim deed, anyone searching the title to the property will be able to see your entire Judgment of Divorce. However, recording your Judgment of Divorce is an option to make sure the property transfer happens.

    Will a Quitclaim Deed Take My Name Off the Mortgage Loan?

    No. A quitclaim deed will not change who is responsible for paying the loan. The judge can order the person keeping the property to try to refinance it in his or her name alone. However, refinancing might not be possible if the property is worth less than the amount of the loan, if the person required to refinance has poor credit, or for other reasons. The judge can’t order the bank to take someone’s name off the loan.

    A deed, a mortgage, and a loan have different purposes. The deed shows who owns the property. The mortgage gives the lender the right to take back the property if you fail to repay your loan as agreed. The loan document (also called a note) shows who is responsible for repaying the loan.

    If the person giving up the property is responsible for the loan, that person should contact the bank to find out his or her options. If you are in this situation and the bank will not remove your name from the loan, you may want to consider talking to a lawyer.