Does it Matter Whose Name is on the Deed or Title in a Divorce?

A very common situation is one where only one spouse’s name is on the deed to the house, or a title to a car. Many people believe they are out of luck if their name is not on a deed during the period of divorce.  In general, it does not matter whose name is on the deed.  Property that would normally be marital is not changed if only one person’s name appears on the deed.  A judge can change that problem with one stroke of a pen. Same thing with vehicles.  They are normally distributed to the person who uses it on a regular basis.

There are two ways to achieve a title transfer in a divorce. One way is for the final judgment of divorce to specify one spouse will sign the house over to the other spouse.  This would normally be done between the parties and attorneys, after the final judgment is signed.  This method has potential danger.  In many situations one spouse will refuse to sign the necessary paperwork.  The only recourse is to go back to court and ask the judge to force that person to sign paperwork.  Very messy!

The second way is preferable.  The final judgment can incorporate a property transfer in the text of the judgment.  To do this, the judgment must clearly specify that the property is being transferred and contain a full legal description.  I like to include language requiring the other spouse to sign a quit claim deed to the property, after the final judgment is signed.  This is a safer method.  If your spouse still refuses to sign the deed, you can record the final judgment of divorce.  If the language is written property, the land will be successfully transferred to your name.  Don’t assume people will obey a court order.  Always have a backup plan in place.

The bottom line: do not assume one spouse or another will keep property just because one person’s name is not on it.  There are many technical factors that determine whether an asset is marital or non marital.