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DIVORCE: Title to House

DISCUSSION:  Mary and Ted were divorced in 1993. In the agreement dividing the assets of the marriage, the statement read "...the marital property of the home is to be the property of the wife. She shall be responsible for all payments of the mortgage, utilities, and other home related expenses. The husband is to execute all necessary documents, including a Quit Claim Deed, to effectuate this agreement."

In 1996, Helen Realtor meets with Mary about listing the property for sale. In talking about the title, Mary relates the information about the divorce and tells Helen that husband Ted never executed any documents to convey title. In fact, Ted ran off with neighbor Suzie and the last anyone heard from them they were living somewhere in New Mexico. Ted’s last words to Mary were, "Don’t ever contact me again. I never want to hear from you ever gain."

Can Helen Realtor list Mary’s home for sale?
Can Mary convey title, by herself, without getting a Quit Claim Deed from Ted?

SOLUTION: In this case, the answer to both questions is YES! Helen can list the house for sale and Mary can convey good, marketable title.

How?? When the intent of the Agreement is to give all title, right, and interest in the house to one spouse, the courts will not allow the agreement to be ineffective because the other spouse fails to fulfill the technical requirements of the Agreement. The issue is the INTENT of the Agreement. It must be clear that it was intended that Mary have ownership (title) to the property, not simply to allow Mary to have possession of the property until such time as the property was sold.

Under this circumstance, Helen lists the house, Mary conveys title by Warranty Deed to the purchaser, and the Title Insurance Company issues an Owner’s Title Policy to the purchaser of the property.