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Dear Quentin,
My husband and I have been separated for a little over a year now. He resides in the home we purchased together five years ago. Due to infidelity on his part, the agreement was he would refinance the home in his name only and we would get a divorce.
He has yet to refinance the house. However, he contacted me today asking me to file a quit claim deed. I researched the document and it does not appear to be something that would be in my best interest. Can you please provide your insight on this matter?
Divorcing Spouse
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Dear Divorcing,
If you purchased this home during your marriage, this home is considered community property, and you own it 50/50. It is in your husband’s interests to encourage you to sign a quit claim deed, and swiftly transfer your share of the ownership of this house, before you enter divorce proceedings. Not only will you have signed away your 50% in the property, you will also have relinquished much of the leverage you have to secure a divorce settlement suitable for you.
If you want to give up your financial obligation on the mortgage, you should also wait and consult your divorce lawyer. “It is important to note that quit claim deeds as well as warranty deeds only impact the ownership (title) and do not change or affect any pre-existing mortgage on the property,” according to Moshes Law, a firm with offices in New York and New Jersey. “The mortgage is a separate document.”
Be cautious about signing such a document. “This is important in a divorce situation where one spouse may quitclaim the property to the other,” the company adds. “However, this does not necessarily remove either spouse’s name from the mortgage and the responsibility to be liable for it.” Your instincts are correct. Signing a quit claim deed now — without consulting your divorce attorney — would be a win-win for your husband, and a lose-lose for you.
“When formulating orders tied into disposition of the marital home, it is normal for the person keeping the house to have three to six months to refinance,” according to Plog & Stein family law attorneys with offices in Colorado. “Your orders should have provisions requiring sale in the event that refinance does not occur. Having orders regarding sale upon a missed payment is also important. If sale becomes required you may want to have a continued say in the process.”
A quitclaim deed should be executed as part of the refinancing. They go together like marital vows and fidelity. Your husband is likely already aware of this.
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