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Couples are sometimes tempted to leave important property like jointly held real estate out of their divorce papers for fear it will complicate their cases. However, even if you and your spouse have already reached an agreement on what to do with your home as well as any other real estate you own together, it still needs to be listed in your divorce papers so that your agreement becomes part of the court's order. That way, should any problems arise later, you can ask the court to enforce your agreement.
It's also important to remember though that, while the divorce agreement settles ownership of property in the eyes of the divorce court, it has no effect on the actual ownership of that property. In order to legally extinguish the rights of the surrendering spouse, a quit claim deed must be signed by both spouses in front of Notary Public. While a properly executed quit claim deed is effective immediately upon signing, the deed should then be filed and recorded with the land records office in the county where the property is located.
The two main types of deeds are quit claim deeds and warranty deeds. A quit claim deed, sometimes mistakenly referred to as a "quick" claim deed, simply allows the property owner, or grantor, to give up, or "quit," all of his rights to a piece of real estate. Aside from relinquishing his claim to the property, the grantor makes no other promises. A warranty deed, in comparison, not only extinguishes the grantor's right to the property, but also warrants that he has clear title to the property and that he will defend the grantee if anyone should claim to have rights to the property in the future. When a couple divorces, they use a quit claim deed instead of a warranty deed because the only objective is to transfer all of one spouse's interest in the property to the other spouse. When someone purchases a home from another party, a warranty deed is generally used because the buyer/grantee has the right to expect that the seller/grantor is passing a clear title, unencumbered by the claims of others. Otherwise, the buyer wouldn't likely be willing to buy the property.
When one or both spouses is represented by a divorce attorney, one of the attorneys should prepare the deed. However, if you are both representing yourselves in your divorce case, you'll need to prepare the deed. Using a do-it-yourself online tool like TotalLegal.com allows you to enter information specific to your real property to prepare your own quit claim deed. Totallegal.com also provides instructions on signing (executing), filing your deed with the proper land records office in your county so that it can then be recorded. Although not required, it is helpful to have a recorded copy of the most current deed for the property when you get ready to prepare your quit claim deed because it will list the legal description of the property as well as prior deed information, which is required in some states.
Generally, only the grantors are required to sign a quit claim deed because a grantor is the one who is giving up property rights. Both spouses are considered the grantors in a quit claim deed conveying jointly held real property to one spouse, and so both spouses must sign the deed in front of a Notary Public. The Notary Public will the complete the necessary portions of the Acknowledgment section at the end of the deed. The spouse who is receiving the property will be listed as the only grantee. The grantee's signature is generally not required for a quit claim deed.
Although the title is considered legally transferred once the spouses' notarized signatures are on the quit claim deed, you need to file the signed deed with the appropriate land records office for your county. Once you file the deed, the land records office will record it. You should expect to pay a recording fee, which usually ranges between $15.00 to $40.00, when you file the deed. In most counties, a unique barcode will be affixed to the top of your deed, which will show the time and date it was recorded. It should also identify the book/volume and page where your deed has been recorded. Keep a recorded copy of the quit claim deed for your records. If, as most counties do, your county has online land records, check to make sure they reflect the deed filing. This can take a few weeks.
The paperwork required to get a divorce can seem overwhelming at first, particularly when you decide to represent yourself rather than hire an attorney. If you have jointly held real estate like your marital home and have agreed that one spouse will keep it, a quit claim deed should be executed by the time the divorce is finalized. When people wait, they often forget and don't remember until there's a problem, namely the spouse that kept the home finds that he is unable to refinance or sell the property because the other spouse is still listed as aa legal owner. If this happens, the owner spouse will have to scramble quickly to get his ex to sign a quit claim deed, and while this shouldn't be a problem in theory, in reality a lot can happen to complicate this. Especially when there are no children of the marriage, spouses often lose touch and one may move away, and even if you know where your spouse is, after time passes, he or she may be reluctant to cooperate, either because of confusion about why an additional document is needed or possibly just because the relationship is strained and your ex wants to be difficult.