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A Toronto couple who divorced at their local courthouse, still owning a vacation home in Fort Lauderdale, Florida, would likely wish to split the property located in Florida. Depending on the situation there are a few ways to accomplish this. If the divorce agreement and/or Order of Court splits the party’s assets including the property located in Florida, a quitclaim deed would need to be filed. This is not always the case, and a detailed assessment of every situation will be necessary to ensure the proper action is taken.
Generally, however, in situations involving the distribution of marital assets by agreement or foreign order of the court, a quitclaim deed is often used. A quitclaim deed would transfer the interest that the ex-spouse would have in the property to the other ex-spouse without providing any guaranty of the title. What this means is that if the ex-spouse did not actually have any interest in the property, the taking ex-spouse would not be able to sue the transferring ex-spouse if errors or title issues were discovered in the future.
As such, quitclaim deeds are often used in Florida in connection with a divorce to get one of the spouses’ names off of the title because ownership of title is certain and there is no need for a warranty deed. The quitclaim deed transfers the spouses 50% interest to the other spouse. When the transferring parties do not know each other, a warranty deed is used as it included a provision the guarantees the transferring party has legal title to the property.
Quitclaim Deed In Florida How Long Does It Take?
There are a few requirements to file a quitclaim deed in Florida: the legal names of the parties, a description of the property being transferred, proper execution of the document, and delivery for the deed. In theory, the transfer from one spouse to another is quite simple, however, a simple mistake can render the transfer void. A void deed has no legal title to the property and can complete future transactions with the property.
Once these requirements are met, the quitclaim deed needs to be filed with the Clerk of Court where the property is located. This involved taking the deed to the office of the Clerk of Courts and paying the requisite fee with the Court. Once all of this is completed, the property will be successfully transferred from one spouse to the other in accordance with the division of marital assets as determined in Toronto.
Unfortunately, quitclaim deeds are only possible when the ex-spouse willingly agrees to transfer their share. Often there are situations where the foreign divorce is silent as to property located in Florida and/or no consideration for the Florida property has been received or reserved. Consideration simply means money or value in exchange for half of their ownership of the property.
Or perhaps the ex-spouse is refusing to agree to any resolution regarding the property, including but not limited to situations where the ex-spouse is refusing to sell the property, share the rental income derived from the property, and/or pay their share of the property taxes or mortgage payments.
Quitclaim Deed Lawyers In Florida
Perhaps, the ex-spouse has even moved into the Florida property without the consent of the other ex-spouse. Luckily for these situations, there are other ways to transfer property in Florida. If the ex-spouse refuses to agree to sell the home, or otherwise come to an amenable agreement regarding the distribution of the property, the court can order a forced sale through a partition action. A partition simply means division.
If the property is not residential (meaning a property containing a house), the Court often will “divide” the property in equal pieces, giving each owner a piece. Obviously, this cannot occur when there is a structure on the property and thus, the need for a forced sale.
A Partition Action
A partition action allows a co-owner to force sale the entire property despite the unwillingness of any other co-owner. This is possible under the law that co-owners cannot be forced to remain as co-owners. A co-owners right to partition is absolute, however, any party can exercise the right to “buy out” the other co-owner based on the appraised value. An appraisal of the property is required prior to the forced sale.
Once a partition action is granted, the property is auction off by the county sheriffs under the court’s supervision. At the conclusion of the auction, after all “auction costs” are paid, each party receives a share of the profits according to the Order of Court. The judge may award an “equal” division of the profits based on fairness factors. Fairness factors include such things as unequal sharing of property expenses such as mortgage payments or taxes or unequal sharing of property benefits like rental income.
Quitclaim Deed With Mortgage
Often times the threat of a lawsuit to force sell the property can help convince the ex-spouse to agree to sell the property on the open market. Properties tend to sell at substantial loses at auctions, so a sale on the open market is the most ideal course of action. Typically, when we draft letters on behalf of our clients, the ex-spouse reaches an agreement regarding the division of the property thereby avoiding the cost of litigation altogether.
This article was written by Boyer Law Firm.
At Boyer Law Firm, P.L., we have provided numerous clients with assistance effectuating the transfer of marital assets in the State of Florida resulting from a divorce obtained in Canada. If you need help transferring property or complying with a resolution of property, or have questions about doing so, call us at (904) 236-5317.