When homeowners divorce, one of the challenges is deciding who keeps the house. One way that a court may order one spouse to give up his claim to the couple's house is to have him sign a quitclaim deed. If the ex refuses to sign, things are no longer simple.
When your husband signs over property with a quitclaim deed, he's giving up whatever title he has. If he signed a warranty deed, that would leave him liable for any problems that crop up with the title. With a quitclaim deed, he has no liability, no matter what title challenges turn up. This makes quitclaim an ideal way to divide property in a divorce: It gets the ex's name off the deed and frees him from any title obligations for the house he no longer owns.
In many states, the family court judge has the power to award you title to the house as part of the settlement. However, depending on where you life, some judges prefer ordering your husband to give up title with a quitclaim deed. Until he does this, he remains a legal owner or co-owner of the property, so if you want to sell the house, you have to get his signature on the deed. Even refinancing becomes a problem: You don't have clear title, so mortgage companies might not want to write you a loan.
Quitclaim deeds don't affect the mortgage: If your spouse's name is on the loan, he's responsible for paying regardless of whether he signs away her title to the house. It's common in divorce cases for the spouse who keeps the house to refinance the mortgage so that the ex who quitclaims the title gets free of the loan. If your husband refuses to sign, you may not be able to take out a new mortgage. There have also been cases where the ex gave up title but the owner refused to take out a new mortgage, leaving him on the hook for payment.
Ideally, a divorce settlement should include deadlines for signing quitclaim deeds and taking out an ex-spouse free mortgage. If there's no deadline, try negotiating with your spouse: Possibly he wants a guarantee that if he signs the deed, you'll take his name off the mortgage. If he refuses outright to sign, ask the judge in your case for help. He can either punish your spouse for defying the court order, or, if state law allows it, give you title without your spouse's consent.
A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.