Legal advice will help in quitclaim deed filing

By Steve Tytler

Question: I’m getting married soon. My fiancee owns a home that we want to protect from my adverse credit past. I owe back child support and I don’t want this property attached to my debts. I understand from your articles that what I need to do is sign a quitclaim deed and file it at the courthouse. Is this all that needs to be done? Or are there any other measures that would protect my fiancée as well? Do I file this pre-marriage or after?

Answer: If your wife-to-be owned the house before you married her, it can remain her separate property after the marriage as long as you do not go on title with her as a co-owner.

While it is not required by law, it is a good idea to file a quitclaim deed against the property to give public notice that you have no legal interest.

Many people don’t realize that you don’t have to actually own a property in order to file a quitclaim deed on it. That’s because all that a quitclaim deed says is that you quit, or give up, any legal ownership interest that you have in a certain property — even if you never had an ownership interest in it to begin with.

For example, I could give you a quitclaim deed to the Space Needle. It would be perfectly legal. But that doesn’t mean you would become the new owner of the Space Needle. It merely means that I am giving you all the ownership interest that I have in the Space Needle. And since I don’t have any ownership interest in the Space Needle, the deed is worthless.

That would also be the case if you signed a quitclaim deed to your wife on the house that she owns. It does not signify a transfer of ownership, but it does give legal and public notice that you acknowledge that she owns the house as her separate estate and you have no legal ownership claim to it.

At my mortgage company, we often do this when we refinance properties that were owned by one spouse prior to a marriage and that person wants to maintain the property as a separate estate. The lender typically requires the nonowner spouse to sign a quitclaim deed to acknowledge that he or she is aware that their spouse is getting a new mortgage on the property and they have no legal interest in the property.

Again, this is not required by law. But banks are very conservative (especially these days) and they do this to protect themselves from potential lawsuits. Otherwise, it might be possible for someone to later claim that their spouse took out a new mortgage on their property without permission.

Whether you actually need to file a quitclaim deed to your wife before or after the marriage I think is a question best answered by an attorney. Please consult an attorney for more advice on this issue.

One other issue to consider is the concept of community property. If you and your wife combine your bank accounts and community funds are used to pay the mortgage on your wife’s house, you will acquire a community interest in the property.

So I suggest that your wife set up a separate bank account for the mortgage and maintenance of the house to make sure it remains her separate property. Again, please consult an accountant or attorney for more advice.

Mail your real estate questions to Steve Tytler, The Herald, P.O. Box, Everett, WA 98206, or e-mail him at economy@heraldnet.com.