A quitclaim deed transfers someone’s interest in real estate to another individual. They’re common in divorce situations when spouses separate their assets from joint ownership into individual ownership, and they usually convey the marital home. The grantor, or the spouse who is not keeping the home, signs his ownership in the property over to the spouse who received it in their divorce decree. A disgruntled ex can cause considerable trouble if he refuses to sign it.
Effect on Mortgages
A quitclaim deed has no effect on debt secured by the property, such as a mortgage or home equity loan. If you and your husband took the mortgage out in joint names, and if he does sign the quitclaim deed, he would continue to be responsible for the mortgage even though he no longer owns the property. A husband may refuse to sign a quitclaim deed until his ex-wife makes arrangements to refinance the mortgage into her separate name, relieving him of any obligation to pay it.
Without a signed quitclaim deed, most lenders will not refinance a property into one spouse’s name. Title insurers won’t cover the transaction without clear title, and you won’t have clear title until your husband relinquishes the property by signing the deed. If your husband won’t sign it, you can’t refinance the home, use it as collateral for another loan, or sell it.
Many divorce attorneys advise their clients not to sign a quitclaim deed until the date of settlement on a refinance, when they're relieved of any responsibility for the mortgage. If you arrange a refinance, your husband can attend the settlement and sign the deed there. This will allow the refinance to go through. If he refuses to do this, you can take steps to force him if, if your divorce decree specifically states that he must sign. Take him back to court by filing an enforcement motion, a post-judgment application to a judge. The judge will again order him to sign the deed or face contempt charges if he doesn’t. Contempt charges can result in money paid to you for any monetary damages you've suffered because of his refusal to cooperate, or even jail time.
If there’s no mortgage against your home and your ex-husband is refusing to sign the quitclaim deed out of hard feelings or to be spiteful, take him back to court as soon as possible, especially if you have no minor children or other obligations that would keep you in contact with each other. If he moves out of state or otherwise disappears on you, you’ll be stuck with a property you’ll never own outright, with no legal recourse to remedy the situation if you can’t find him.
- Woman’s Divorce: Divorce and Quitclaim Deeds
- Dan Melson’s La Mesa Real Estate and Mortgage Website; The Effects of Divorce on Real Estate; Dan Melson; July 2004
- HG.org. "Contracts 101—Warranty vs Quitclaim Deeds." Accessed Aug. 12, 2020.
- Realtor.com. "When Do You Need to Get a Quitclaim Deed?' Accessed Aug. 12, 2020.
- DivorceNet. "Interspousal Transfers Versus Quit Claim Deeds." Accessed Aug. 12, 2020.
- California State Board of Equalization. "Property Ownership and Deed Recording," Page 7. Accessed Aug. 13, 2020.
Beverly Bird has been writing professionally for over 30 years. She is also a paralegal, specializing in areas of personal finance, bankruptcy and estate law. She writes as the tax expert for The Balance.