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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 39047
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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I am getting ready to go through a divorce. My husband and

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I am getting ready to go through a divorce. My husband and I own a home together which we still have a mortgage on. He is the only one on the loan but we are both on the deed. He is going to sign over his interest in the house, and will be leaving his name on the loan until I am able to get it in my name. I will be making the house payment. What is the best way to do this property transfer? I have looked at a Quit Claim Deed...is that iron clad to where if he would re-marry his new wife would have no claim to my house in the event of their divorce or his death? If we do a Quit Claim Deed am I free to sell the house in the future if I would decide to do that? We have discussed doing a land contract, putting my name as the buyer along with my son. That would make me one of the sellers and a buyer....can that be done?
Hello...you asked:

What is the best way to do this property transfer? I have looked at a Quit Claim Deed...is that iron clad to where if he would re-marry his new wife would have no claim to my house in the event of their divorce or his death?

A: Nothing is "ironclad" in the law. But, a quitclaim deed as a means of transferring real property between spouses incident to divorce is a de facto standard. Your proposed plan of transferring title to your sole name while leaving your spouse on the mortgage as a coborrower, is pretty much how this transaction is done, in every similar divorce case in the USA. I don't necessarily recommend that a party transfer ownership while maintaining liability -- if I were representing your spouse, I would say, "Bad idea. Until the property is sold or refinanced, you need to keep your name on title, so that you have some control over the property if your soon-to-be-ex stops making payments on the mortgage." But, for you, the deal is pretty good, because you have sole title and if you stop paying the mortgage, your ex is still liable to pay (though he may not, but that's a different issue, entirely).

If we do a Quit Claim Deed am I free to sell the house in the future if I would decide to do that?

A: If you are the sole title holder, then you are solely in control of whether or not to sell and when.

We have discussed doing a land contract, putting my name as the buyer along with my son. That would make me one of the sellers and a buyer....can that be done?

A: You can't purchase something from yourself, because you already own it, so there's nothing to purchase. Your spouse could agree to a land contract as a means of transferring ownership while leaving his name on title until the contract is satisfied. That way, your spouse would be the seller of his interest in the property, and you and your son, the buyers of that interest.

I've observed 100s of people attempt to do land contract deals over the years. Every single one of those transactions have ended badly. A land contract (aka, bond for deed, executory land sale agreement, etc.) is a legally permitted vehicle, but because title is held back in expectation of a very long term of payments, there is too much probability for something to go wrong. So, be careful with this device, because it may fail unexpectedly.

Hope this helps.
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