Quitclaim Deeds and Divorce
Division of real estate can be a contentious issue in a divorce. Add on the legal complexities, and dealing with marital property can turn into an outright headache.
One way to avoid many of the legal hassles that arise in the treatment of property is to use a quitclaim deed. Although not appropriate in some situations, it can work wonders for many couples during a divorce.
Deeds and Divorce in Michigan
In a divorce, real estate is typically either sold to a third party or transferred between spouses. When the latter is the case, problems can arise. Avoiding deed issues starts with first understanding the type of ownership underlying your deed.
Generally speaking, there are three principal types of property ownership in Michigan:
- Joint tenancy
- Tenancy by the entireties
- Tenancy in common
In most cases, married couples have either a joint tenancy or tenancy by the entirety, which comes with the rights of survivorship. Rights of survivorship state that if one person on a deed dies, the other person receives the deceased person’s share of the property.
With tenancy in common, on the other hand, the share of the property of a person who has died goes to the decedent’s heirs.
Quitclaim vs. Warranty Deed
When real estate is transferred in a divorce, a quitclaim or a warranty deed is used. The main difference between the two is the guarantee that comes with a warranty deed. When transferring property using a warranty deed, the seller is guaranteeing that they have clear title to the property.
The same is not the case with a quitclaim deed. A quitclaim deed offers very little protection against encumbrances. When a seller uses a quitclaim deed, they are simply transferring their interest in a property to another person. Any issues with the title are transferred during the transaction and are no longer their responsibility.
Quitclaims in Divorce
Although the protection they offer is scant, quitclaims are effective in divorce proceedings. When used, the quitclaim deed transfers sole ownership of the property to one of the spouses.
However, the property’s mortgage is a separate issue. Just because one party gets the house does not mean they will also get the mortgage. There are typically three possible mortgage outcomes when using a quitclaim deed:
- The spouse who gets the house pays the mortgage
- The spouse who does not get the house pays the mortgage
- One spouse gets the house, but both are responsible for paying the mortgage
Which outcome applies in a particular situation depends on the mortgage paperwork.
Quitclaims are standard practice in divorces when real estate is transferred between spouses. They help speed up the process, but they come with consequences you should consider. A family law attorney can help you understand the ins and outs of quitclaims and other important divorce issues.
Working with an Experienced Attorney
Gucciardo Family Law has the resources to tackle your problems, and we truly care. Contact our office to speak with an experienced family law attorney and learn how we can potentially help.
Too much information?
We focus exclusively on family law matters so we are always available to answer your questions and help.
Leave a Reply