What if My Ex-Wife Won't Sign the Quitclaim Deed?

by Beverly Bird, Demand Media

    Marriage creates a legal web of asset ownership, and unsnarling the web when you divorce can be complicated. This is particularly true if one spouse refuses to cooperate. Your home is probably the most valuable asset you own, and if you're not going to sell it, either you or your wife has to cede ownership to the other. If your wife won't sign a quitclaim deed to accomplish this, you have legal options.

    What a Quitclaim Deed Does

    Spouses commonly use quitclaim deeds in divorce situations to transfer ownership of property from both of them to only one -- the spouse who is keeping the residence. Quitclaims aren't appropriate in all situations, because they make no promises or guarantees that the person signing off on ownership actually has any ownership to give. If you and your wife bought your home together, however, you can be sure that she has an interest in the home to transfer to you. After she signs the quitclaim deed, she no longer has an interest in the home. It's all yours. The signed quitclaim deed replaces the deed you received in both names when you bought the property.

    The Mortgage

    Even when your wife signs a quitclaim deed, it doesn't supersede the terms of your mortgage. If your mortgage is in both your names, and if your wife signs the quitclaim deed giving you full ownership, she's still responsible for paying the mortgage if you don't. Most spouses are reluctant to sign a quitclaim deed for this reason, at least until they're sure that the existing mortgage has been refinanced so they're no longer responsible for it. Your wife's attorney might actually advise her not to sign the deed until you've refinanced the mortgage. Otherwise, she's on the hook for paying for something that she no longer owns.

    Timing Issues

    Most mortgage companies won't refinance without a deed that reflects accurate legal ownership, so this can create a dilemma. Your wife probably won't want to sign the deed too soon, before you've arranged refinancing, but by the same token, you can't close on refinancing without the signed deed. However, it's possible for your wife to attend your closing and sign the deed at that time. She can protect herself, but your refinancing can still go through.

    Your Options

    If your wife refuses to attend closing and sign the deed at that time, you have options to force her to cooperate. As long as your divorce judgment states that she is obligated to sign the deed and relinquish ownership of the home to you, you can take her back to court. You'd usually do this in the same court where you got your divorce, and it involves filing a motion to enforce your judgment. The judge will order your wife to do what she was supposed to do according to the judgment and sign the deed. If she still refuses, this is contempt of court. You can then file another motion, asking the judge to hold her in contempt. However, if you do this, be prepared to see her go to jail, at least for a short time until she agrees to sign.

    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.