When a married couple separates, they must figure out a way to divide their joint assets to their mutual satisfaction or fight it out in court. Usually, the largest joint asset of any couple is the former marital residence. If the parties can agree upon who gets to keep the residence, they generally transfer ownership by means of a quitclaim deed from one spouse to the other. Sometimes, though, the transferring spouse refuses to sign.
If your ex-wife won't sign a quitclaim deed and she was ordered to by the court, you can take her back to court. When there is no legal contract stating your ex-wife has to sign, you'll need to get together and try and work out an agreement.
Timing of the Refusal
What to do if your wife refuses to sign a quitclaim deed on the former marital residence depends upon where in the case the refusal occurs. If a marital settlement agreement obligates her to sign, you can sue her in court for breach of contract. If a court has ordered the deed transfer as part of an equitable distribution or community property consent order or trial decision, you can bring her in for contempt of court.
If you have neither a written agreement nor a court order, you'll have to take her to court to have a judge rule on what to do not only with your house, but also with the rest of your marital estate.
Contempt of Court
Before you bring your ex in on contempt of court, have your lawyer prepare the quitclaim deed and send her a letter informing her that it's ready for her signature. State a deadline in the letter. Hold off on filing your motion until after the deadline passes, and save any emails, voice mails or text messages that indicate her refusal to sign.
Be sure, though, that you're in compliance with all portions of the order yourself. While one party's contempt doesn't excuse another's, judges don't like it when one party brings a contempt motion even though he is in flagrant disregard of the order himself.
Breach of Contract
If the obligation to sign the quitclaim deed is in a marital settlement agreement, you can't bring a contempt motion because there's no order for your ex to violate. You can, however, sue her for breaching your agreement. Again, have your lawyer prepare the quitclaim deed and send a letter. If your agreement has an attorney fee provision obligating a breaching party to reimburse the other side for his fees, point this out.
If you yourself aren't already in compliance with the agreement, make sure you are before you file your breach of contract suit; if you don't, she could counterclaim against you for your own breach.
No Order or Agreement
If you've already divorced and didn't settle your property division issues by consent order or separation agreement prior to the entry of the decree, you may now be unable to force your ex to sign a quitclaim deed. The property division laws of most states revert to English title theory upon entry of a divorce decree, meaning the rights of either party to claim community property or equitable distribution evaporate. If you haven't divorced yet, you'll need to talk her into a marital settlement agreement or duke it out in court.
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