Domestic Partner, Quitclaim Deed, & Mortgage

Don't pursue a quitclaim deed without understanding all the implications.

My domestic partner and I are splitting up and we own a home together. He wants me to sign a quit claim deed but refuses to refinance and our lender won't take me off the loan because we have a second mortgage. My 1st question is, is there anything an attorney can right up that keeps me on the title but states that moving forward, I have no right to occupy or rent out the property? if I do sign the quit claim deed and he dies w/out me on the title, will I be responsible for the debt?

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Bill's Answer
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Updated: Sep 18, 2014

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Highlights

  • A quitclaim deed transfers ownership rights in a property, but it does not mean the property has no liens on it.
  • Your financial responsibility for a mortgage does not end, if you quitclaim.
  • Consult with an attorney when jointly owned assets can't be divided by mutual agreement.

Thank you for your question about your mortgage, your home, and a quitclaim deed.

There are at least three separate issues present in your question:

  1. Your rights to the property
  2. The domestic partnership
  3. Your obligation for the mortgage debt.

Domestic Partnership

A domestic partnership is a type of legal relationship between two people who are not married, but enjoy the rights, protections, benefits, responsibilities, obligations, and duties that normally fall only to married people.

The rules for domestic partnership apply in some jurisdictions to both same-sex partners and to male-female partnerships. In other jurisdictions, they only apply to male-female partnerships. Domestic partner benefits can be set by a state, city, county, or by individual employers.

The federal government does not recognize domestic partnerships, aside from some limited recognition for federal employees.

California domestic partnership law has very broad provisions, making a domestic partnership a virtual marriage. Because the rules vary in different jurisdictions, it is important to do your homework to see if you are eligible for a domestic partnership and what the rights and responsibilities are in your jurisdiction.

Quitclaim Deed

A quitclaim deed is a legal document that conveys one person's interest in a property to another person. The deed indicates that the title is conveyed from the grantor (transferor) to the grantee (transferee).

Although it is not an issue in your case, anyone who has property rights transferred to him or her through a quitclaim deed should be aware that it does not guarantee that the grantor holds the legal rights of ownership. The quitclaim deed also does not guarantee that the property being transferred has a clear title, or that the title is free of liens.

In your case, you would transfer your interest in the property to your ex-partner, leaving him with full ownership rights to the property. This can be done quickly and at low cost, but you should consider if it is in your interest before you file a quitclaim deed.

Financial Responsibility

The quitclaim process is between you and your ex-partner. It has no relation to the mortgage loan the two of you jointly hold with your lender. Regardless of your ownership rights in the property, you are responsible for the mortgage financially.

You continue to be responsible for the mortgage, although if the mortgage is paid as agreed, the impact on you would be minimal. If your ex-partner ends up not paying the mortgage on time, it will show on your credit report and lower your score. Whether he dies or lives, you are responsible for the mortgage until it is paid off via a new loan (refinance) or the home is sold.

The joint mortgage with your ex-partner could also pose a problem, were you to apply for another mortgage. At that time, the new lender would see on your credit report that you have another mortgage in your name. The new lender could count the monthly payment on your old home as part of your debt-to-income ratio, making it hard to qualify for the new loan. This is another reason for you to seek a way to get yourself off the mortgage.

Is there any equity in your property? If so, the cleanest solution is to sell the home and divide the proceeds. Can your ex-partner buy you out, paying you a share of the equity to have you quitclaim your interests? If he cannot pay you a lump sum, maybe you can have an attorney write a contract for your ex to buy out your interests over time? If there is no equity or one of you will not agree to sell the home, there may be no good solution.

You did not specify why your ex is against refinancing the loans into his name. Could he qualify for a refinance loan, if he wanted to? He may be against refinancing because he thinks other options are available that will get you off the property and protect your rights, but they may not exist.

Don't quitclaim your interest in the property, while you remain financially responsible for the mortgage. If your ex changes his mind and decides to refinance, you can quitclaim your interest in the property, but do not do so without first having him sign a contract that he will refinance the loans, once you convey title.

Does your ex-partner have the ability to make the payments on the first and second mortgages on his own? If not, the mortgage will go delinquent, affecting both of you. That gives you both an incentive to find a mutually satisfactory solution. If he can pay both mortgages, he may prefer the status quo, although that leaves your ownership stake in tact.

Consult With a Lawyer

Consult with a lawyer. I imagine a lawyer may write a contract that keeps you on title, but restricts your rights to the property, although I am not sure that this would benefit you. Due to the complexity of the issues involved and the multiple scenarios possible, I recommend you seek counsel of a divorce lawyer.

A lawyer is knowledgeable about the various options available for dividing shared assets when a relationship dissolves, including a domestic partnership. The divorce attorney can recommend a different attorney to write up a contract limiting your rights to the property, if you decide that course of action serves your interests.

I hope this information helps you Find. Learn & Save.

Best,

Bill

Bills.com

20 Comments

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  • AG
    Apr, 2014
    Ange
    If at the divorce, both parties sign the new deed that gives the wife the house. Many years later, wife tries to sell the house and finds judgments against ex-husband, which occurred AFTER the divorce. After investigating, the divorce lawyer did NOT file the deed for almost 2 years! AND since he didn't do that the wife is now responsible for all HIS debt. How can this be resolved? There is a closing in 2 weeks. The old attorney says, "He can't remember." OMG, disaster!
    0 Votes

    • BA
      Apr, 2014
      Bill
      Consult with a new lawyer to discuss filing a malpractice claim against the original lawyer. Your new lawyer will also need to cajole the ex-spouse to pay-off the judgments attached to the property.
      0 Votes

  • CK
    Feb, 2014
    Craig
    My wife and I separated in 2008 and finally divorced in 2012. In 2010 I filed chapter13 and included the mortgage to our condo. It was discharged in 2013. Our divorce decree included that I quit deed the property over to my ex wife and that was finally done, signed Oct 25 2013 and recorded nov 7 2013. I just found out through a summons that the bank filed for foreclosure on Oct 22 2013, just three days before the signed date of the quit deed. Where does that leave me? My name is no longer on the property and my financial responsibilities have been discharged through chapter 13. Can the foreclosure still go on my record even though my name is no longer on the property?
    0 Votes

    • BA
      Mar, 2014
      Bill
      Consult with you bankruptcy lawyer to learn if the bank's actions were proper, and if the notation on your credit report is allowed under law.
      0 Votes

  • KS
    Feb, 2014
    Karen
    Divorced 15 years. Husband signed quit claim after divorce. It states I owe him $2,500. Never received notice that he signed it. Refinanced years later. Had to get a copy of the quit claim never thinking about the payment of it... Now back in court because he wants to stop child support and spoke to a lawyer and she found this. What are my options? I have no problem sending him a check. Just don't want this to be an issue. Also not my name it printed on the quit claim deed but I didn't sign it. Is that normal?
    0 Votes

    • BA
      Feb, 2014
      Bill
      You need more assistance than a person can provide in a few sentences on a Web site. Consult with a lawyer in your state who has family law experience.
      0 Votes

  • VC
    Jan, 2014
    VIVIANA
    I have been divorced 10 years. A judgment is fully registered house fell to my name and already a script have splitting real. The house is with USDA, remove power and my ex husband liability shall account have to send a quitclaim deed. The claim directly by the court because my ex did not want cooperate. Now he wants to strip or sell my house, which, I have paid over 13 years by myself and scripture are under my name. Can he do something against me or my property?
    0 Votes

    • BA
      Jan, 2014
      Bill
      Talk to a lawyer who has experience in either family law or real property law. Perhaps your divorce lawyer would be a good choice to talk to. A lawyer will explain what rights your ex-husband may have to your house.
      0 Votes

  • JD
    Nov, 2013
    John
    If you and your spouse are divorcing, your spouse left the home you bought together and is shacked up with another partner meanwhile yall have had an attorney hearing and during that conference, the departed spouse signed documents stating that you have use of the family home, than that spouse filed chapter 13 bankruptcy to include her partnership in mortgage, if you refinance your home prior to divorce, nonetheless the deed is still in both of your names yet you have become solely responsible for mortgage payments,refinancing a new mortgage contract singularly in your name, does the departing spouse who abandoned mortgage commitment have any say so as far as you getting their name removed from deed as well? How could you go about name removal from your deed in this case?
    0 Votes

    • BA
      Nov, 2013
      Bill
      Talk to your divorce lawyer about a quitclaim deed. This may be able to address your situation at a low cost.
      0 Votes