by Sheryll Bonilla, Esq.
In some divorces, one spouse buys out the other’s ownership, and the selling spouse signs over their half share to the buying spouse.
In these cases, it’s a good idea to prepare the deed so it can be signed concurrently with divorce decree.
Divorce lawyers generally don’t write deeds, so it’s not a task they think of when negotiating the final terms of the decree.
Having to pay for monthly divorce lawyer fees, the thought of paying for one more legal document just feels like something they’d rather not think about till later.
One reason for having the deed drafted so it can be signed around the same time as the decree is to minimize the opportunity for a hostile spouse to drag out the misery.
Decrees may put timeframes for when the deed has to be signed, but as too many ex-spouses find out, a non-cooperative spouse can just refuse, refuse, refuse.
The innocent spouse then has to go through the expense and unhappiness of a motion for post-decree enforcement. Having the deed signed with the decree increases the likelihood that the house transfer will be accomplished.
The marital status of the grantor (the person transferring ownership) and the grantee (the person receiving ownership) has to be noted on deeds. A name change, such as a wife resuming her maiden name, can also complicate a transfer.
On paper, “Jane Doe, wife of John Doe” is not the same person as “Jane Smith, unmarried” even though she’s the same person. Jane Smith, an unmarried person, has no legal right to transfer property owned by Jane Doe, wife of John Doe.
She may be the same person in real life, but on paper, they are not the same until the Land Court orders that the divorce and name change be noted on the certificate of title for that deed.
If you’re one of those people going through a divorce right now, look at the top of the first page of your deed.
Yes, you have your deed even if the mortgage isn’t paid off – the house is yours when you take out that home loan and purchase the home. You might find your deed with your mortgage papers, and if not, you can ask your lender for a copy.
If the recording stamp is on the right side at the top of the first page, then the house is recorded in the Regular System.
The divorce between the parties and/or the changed name of a wife, can be noted in an affidavit submitted along with the deed. Simple, but still an additional expense.
If the recording stamp is on the left side at the top of the first page or has stamps in both the left and right boxes, this is more extensive.
That means the property is registered in the Land Court System. A petition to note the divorce and name change (if any) has to be filed with the Land Court.
The deed transferring the property from one ex-spouse to another cannot be recorded until the Land Court issues an order noting the divorce and any name change of the parties.
This step adds to the cost and delay in transferring the property.
To save time, cost, and hassle, if your decree requires one spouse to transfer property to the other, consider getting the deed done so that the spouse can sign when he/she signs the decree.
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