Oftentimes, one of the most important assets in a Florida divorce is real estate. For most married couples, the marital home is both the largest financial asset and the asset with the most emotional attachment. When a divorce court divides property, the parties must agree on what will happen to the home: Should it be sold? Should one spouse keep it? Should both spouses retain title for some period?
When one spouse keeps the property, a quitclaim deed is typically used to transfer the other spouse’s interest in the real estate. Put simply, a quitclaim deed lets one party give up whatever ownership interest he or she has in the property.
Quitclaim deeds are very misunderstood; they can transfer title, yet they do not automatically resolve every financial issue related to the property. Importantly, signing a quitclaim deed does not remove a spouse from the mortgage. In my experience, this is one of the more frequent sources of confusion in Florida divorce cases.
A Florida divorce court will divide marital property using equitable distribution. Under Florida law, the court must “set apart to each spouse that spouse’s nonmarital assets and liabilities,” and then distribute marital assets and liabilities beginning “with the premise that the distribution should be equal,” unless an unequal distribution is justified. Fla. Stat. § 61.075.
In practice, quitclaim deeds often become a necessary step in carrying out a Florida divorce judgment.
WHAT IS A QUITCLAIM DEED IN FLORIDA?
A quitclaim deed is a deed that transfers whatever interest the grantor has in real property to another person. The person giving up the interest is called the grantor. The person receiving the interest is called the grantee. As Florida courts explain, “[a] quitclaim deed conveys whatever title the grantor has, if any.” Zurstrassen v. Stonier, 786 So. 2d 65, 71 (Fla. 4th DCA 2001); see Blitch v. Sapp, 142 Fla. 166, 194 So. 328, 330 (Fla.1940). Florida law also provides a statutory form for quitclaim deeds. Fla. Stat. § 689.025. The statute states that a quitclaim deed may be used to convey real property or an interest in real property.
In other words, a quitclaim deed states whatever ownership interest I have in this property, I am transferring it to you.
However, that does not mean the grantor promises that he or she has good title to the property. A quitclaim deed is distinct from a warranty deed, as it does not provide the same warranties about ownership or title. Rather, it transfers the grantor’s interest, if any.
This distinction matters in a Florida divorce because quitclaim deeds are often used between spouses who already know the property’s history. For example, where both spouses are on the marital home’s deed and the home is awarded to Wife, Husband may sign a quitclaim deed transferring his interest to her. In such circumstances, the point is generally not to prove title from scratch. Rather, the quitclaim deed ensures the property division ordered by the Florida court or agreed to by the spouses in their divorce is carried out.
A common misunderstanding in Florida divorce cases is that parties think the divorce judgment itself changes the deed instantly. However, that is not always how it works. A final judgment awards the property to a spouse, but a deed may need to be prepared, signed, notarized, witnessed, and recorded to make the public land records match the divorce judgment.
Florida law imposes execution requirements. Typically, a deed must be signed by the grantor in the presence of two subscribing witnesses. Fla. Stat. § 689.01. Additionally, Florida law has set recording requirements, such as formatting and identifying information required before the clerk may record the instrument. Fla. Stat. § 695.26. In all, a quitclaim deed in Florida is not simply a casual document between spouses. In reality, it is a formal real estate instrument.
WHEN ARE QUITCLAIM DEEDS USED IN A FLORIDA DIVORCE?
Quitclaim deeds are most commonly seen in Florida divorces when one spouse is awarded real estate that was previously titled in both spouses’ names. For instance, a marital settlement agreement may state that Husband will keep the home and Wife will transfer her interest to him. In this scenario, a quitclaim deed may be necessary to ensure the deed matches the property division.
Florida cases often discuss quitclaim deeds in this context. In Matos v. Matos, “the wife signed a quitclaim deed transferring her interest in the house to the husband,” and in return, “the husband was to refinance the house and give her $ 50,000 as well as the title to the family vehicle.” 932 So. 2d 316, 317 (Fla. 4th DCA 2006). In Flynn v. Flynn, the parties’ divorce judgment and marital settlement agreement required the former wife to execute a quitclaim deed in favor of the former husband. 132 So. 3d 904, 905-06 (Fla. 2d DCA 2014).
In my experience, this is common because the spouse who keeps the home wants to remain there due to factors, such as children, school stability, sentimental attachment, or financial practicality. In other circumstances, the home may have equity that is offset against other marital assets.
Typically, in a Florida divorce, quitclaim deeds come at the end of the process. The deed should match the marital settlement agreement or final judgment. If the Florida divorce judgment holds that one spouse receives the home, then the quitclaim deed carries out that award in the public land records.
With that in mind, a quitclaim deed should not be treated as a substitute for a complete divorce agreement. It transfers title; however, the marital settlement agreement or divorce judgment still addresses the related financial terms. Some terms I commonly come across are responsibility for the mortgage, deadlines for refinancing, payment of taxes and insurance, responsibility for repairs, and what happens if the spouse keeping the home does not comply.
A quitclaim deed answers who owns the property, but it does not, by itself, answer every question connected to it.
A QUITCLAIM DEED TRANSFERS TITLE…NOT THE MORTGAGE
An important thing to make clear about quitclaim deeds is that title and mortgage liability are different.
A deed reflects ownership of the property, whereas a mortgage is a loan obligation between the borrower and the lender. A quitclaim deed can transfer one spouse’s ownership interest in the property. However, it does not automatically remove that spouse from the mortgage.
Many mistakenly assume that signing a quitclaim deed ends their connection to the property altogether, but that is not always the case. In cases where both spouses signed the mortgage, both may remain liable to the lender even after one spouse gives up title.
In simple terms, a spouse can sign away ownership of the property yet remain responsible for the mortgage debt. Importantly, this is why a quitclaim deed creates risks if it is signed without addressing the mortgage.
For example, Husband and Wife own a home together; both are listed on the mortgage. In the divorce, Wife keeps the home, and Husband–through a quitclaim deed–transfers his interest to her. Wife now owns the home, but Husband is still on the mortgage, so the lender can still look to Husband if payments are not made.
At first glance, that result may feel unfair. From the lender’s perspective, it makes sense, though. The lender agreed to loan money based on the borrowers’ promise to repay, and a deed between spouses does not automatically alter that agreement.
In Prieto v. Rossi, the marital settlement agreement required the former wife to execute a quitclaim deed conveying “‘all of her right, title and interest in the marital residence to [her] Former Husband,’” while also tying release of the deed to a “refinance or satisfaction of the current note and mortgage.” 385 So. 3d 144, 146 (Fla. 4th DCA 2024). This kind of structure demonstrates why both the deed and the mortgage must be addressed.
In my experience, this is a dangerous misunderstanding in Florida divorce cases involving marital property. One party may think signing the deed means he or she is no longer on the hook, but if his or her name remains on the mortgage, that party may remain liable to the lender.
This scenario is one of many reasons why a Florida divorce judgment must be specific. If one spouse keeps the property, the settlement agreement or judgment should address whether that spouse must assume the loan, refinance, or indemnify the other spouse from mortgage liability.
In sum, a quitclaim deed may transfer title, but it does not necessarily transfer debt.
REFINANCING AND QUITCLAIM DEEDS AFTER A FLORIDA DIVORCE
Because a quitclaim deed does not remove a party from the mortgage, refinancing is usually necessary in cases where one party is keeping the home.
Refinancing refers to when the spouse keeping the property gets a new loan in his or her name alone. The new loan pays off the old mortgage, which then removes the other spouse from the prior mortgage obligation. When done correctly, the deed and mortgage then match. In other words, the party who owns the property is the same spouse who is responsible for the loan.
For instance, Husband is awarded the marital home in the divorce. Wife agrees to sign a quitclaim deed transferring her interest to him. However, since Wife is also on the mortgage, Husband may need to refinance the home within a certain period so Wife is no longer liable on the loan.
Quitclaim deeds, refinancing, and equalizing payments often become intertwined. As discussed earlier in Matos, the alleged agreement involved the wife signing a quitclaim deed, while the husband was supposed to refinance the house and pay her for her share. 932 So. 2d at 317.
In many cases I see, the timing of the quitclaim deed and refinance matters. The party giving up title may not want to sign a quitclaim deed too early if he or she will remain on the mortgage after-the-fact. On the other side, the lender may want to see certain title documents before approving or completing the refinance.
The divorce agreement should be explicit. It must clearly establish when the deed needs to be signed, when refinancing must happen, who is responsible for the mortgage before refinancing is finalized, and what occurs if refinancing is denied.
Importantly, a Florida court will divide both marital assets and marital liabilities through equitable distribution. Fla. Stat. § 61.075. Thus, the mortgage should be addressed along with the home itself. The home may be the asset; however, the mortgage is often the liability attached to it.
My overall point is this: a quitclaim deed can be an important step in the process, but it should be coordinated with the broader financial terms of the divorce.
ISSUES WITH A QUITCLAIM DEED IN A FLORIDA DIVORCE
A quitclaim deed only works is if the spouse who is supposed to transfer his or her interest signs it. In many Florida divorces, one spouse is often required to execute a quitclaim deed by a certain deadline. In cases where said party refuses, the issue turns into an enforcement problem. The party who was awarded the property may have to return to court and ask the judge to enforce it.
Florida courts distinguish between enforcing a payment obligation and enforcing a required act. In Roth v. Roth, the Florida court affirmed a contempt order where the former husband refused to sign a mortgage and promissory note required by the dissolution judgment. 973 So. 2d 580, 591-92 (Fla. 2d DCA 2008)
Separately, in Flynn, the quitclaim deed and assignment were held in escrow until the former husband made the required equalizing payments under the parties’ agreement. 132 So. 3d at 905-06. Such arrangement demonstrates how carefully divorce judgments may need to structure the timing of deeds.
In my practice, the best way to avoid issues is to make the divorce judgment clear and specific. The order should include information like who should sign the quitclaim deed, when it should be signed, who will pay recording costs, and what happens if a party refuses.
In theory, a quitclaim deed is a simple document. However, in reality, it can turn into a major enforcement issue if the divorce judgment does not clearly explain what is required of each spouse.
THE BOTTOM LINE FOR QUITCLAIM DEEDS IN A FLORIDA DIVORCE
Quitclaim deeds are often a necessary part of Florida divorces when real estate is involved. A quitclaim deed can transfer title. However, it does not guarantee title, replace a complete divorce judgment, or automatically remove a spouse from the mortgage.
For that reason, the deed should align with the divorce judgment and match with any refinance, buyout, or equalizing payment. Optimal divorce agreements address both sides of the issue: who owns the home and who is responsible for the debt.
To learn more about transferring real estate in a Florida divorce, contact my Naples, Florida family law office to speak with an experienced Florida divorce attorney.
Russell Knight is a licensed Florida attorney who has practiced family law for 19 years and has effectuated hundreds of quitclaim deeds in the course of the thousands of divorces his offices have handled.
CASES AND STATUTES REFERENCED IN THE QUITCLAIM DEEDS IN FLORIDA ARTICLE
Florida Statutes – Fla. Stat. § 61.075 (Equitable Distribution of Marital Assets and Liabilities)
Florida Statutes – Fla. Stat. § 689.01 (How Real Estate Is Conveyed)
Florida Statutes – Fla. Stat. § 689.025 (Form of Quitclaim Deed)
Florida Statutes – Fla. Stat. § 695.26 (Requirements for Recording Instruments Affecting Real Property)
Blitch v. Sapp, 142 Fla. 166, 194 So. 328 (Fla. 1940)
Flynn v. Flynn, 132 So. 3d 904 (Fla. 2d DCA 2014)
Matos v. Matos, 932 So. 2d 316 (Fla. 4th DCA 2006)
Prieto v. Rossi, 385 So. 3d 144 (Fla. 4th DCA 2024)
Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008)
Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. 4th DCA 2001)
Frequently Asked Questions About Quit Claim Deeds And Divorce In Florida
Do I need a lawyer to prepare a quitclaim deed in Florida? No, Florida law does not require an attorney to prepare a quitclaim deed; however, even small drafting errors in a divorce can create title issues for years, so legal review is strongly recommended.
How much does it cost to file a quitclaim deed in Florida? Generally, recording costs approximately $10 for the first page and $8.50 per additional page.
Is a quitclaim deed between divorcing spouses subject to documentary stamp tax in Florida? Usually, no. Florida law exempts deeds that transfer the marital home between spouses, or ex-spouses, as part of a divorce, so no documentary stamp tax is owed.
Can a judge force my spouse to sign a quitclaim deed? Yes, if a final judgment or marital settlement agreement in a divorce requires a party to sign a quitclaim deed, then a Florida court can enforce that requirement.
How long does my spouse have to sign a quitclaim deed after our divorce? There is no automatic deadline, but rather, the timeframe is whatever your final judgment or marital settlement agreement specifies.
Can I sell the house if my ex will not sign the quitclaim deed? Typically, you cannot. Without the deed, your ex still holds an interest in title, so you may need court enforcement or some other legal remedy before you can sell the property with clear title.
What happens to the homestead exemption after a quitclaim deed in a Florida divorce? The party who stays in the home can retain the homestead exemption, but for good measure, should confirm with the county property appraiser whether a new application is needed after the title change. However, the party who leaves loses the exemption on that property.
Can I sign a quitclaim deed before the divorce is final? You can, but that can be quite risky to do without full settlement, mortgage, and refinancing terms established.
What is the difference between a quitclaim deed and a warranty deed in a Florida divorce? A quitclaim deed transfers whatever interest the grantor has (no guarantees), whereas a warranty deed includes promises about title. Quitclaim deeds are very common in divorces because the spouses often already know the title history.
Does a quitclaim deed affect my credit if my ex stops paying the mortgage? Yes, because a quitclaim deed does not automatically take your name off the mortgage, any missed payments from your ex can still impact your credit.
