ITEMS TO CONSIDER WHEN RECORDING A DIVORCE DECREE THAT WILL AFFECT REAL ESTATE

By Rudman Winchell Attorney Cynthia M. Mehnert

At the end of a divorce proceeding, the Court will issue a judgment which lays out the division of property and assets between the parties as well as detailing other family matters.  Because divorce judgments can be quite lengthy and not just discuss the division of real estate, an Abstract of Divorce Decree is often recorded at the Registry of Deeds for the county in which the real estate is located.

                Under Maine law, 19-A MRSA §953, a properly drafted Divorce Decree also known as an Abstract of the Divorce Judgment may act the same as a quitclaim deed and transfer the property to a specific party when the divorce is final. Section 953 requires at a minimum that the Divorce Decree contain the caption of the divorce action, the date of the final judgment, an adequate description of the property, any encumbrance affecting the property, and a clear statement of the ownership interest in the real estate of the parties to the divorce.

                Divorce Decrees are relied upon as a deed when examining a real estate title. The details in the decree can be very important when trying to mortgage or sell the property after a divorce.  While an inconsequential failure to include certain information will not invalidate the Abstract of Divorce, it can cause title issues for the property owner at a later date.

                From a real estate attorney’s perspective, sometimes more detail in a decree can resolve many title questions.  Questions such as was the property a marital or non marital asset?  If the property is a non marital asset then the title to the property will be treated differently.

                Questions such as does the Divorce Decree transfer more than one property.  Is the property in more than one county? Does the decree adequately describe the property and the ownership interests? Very specific descriptions regarding the property and the ownership of each parcel in the Abstract of Divorce Decree will avoid confusion later on.

                Questions such what actions are to be taken regarding the property?  Is the property to be sold or is a mortgage to be refinanced? A Divorce Decree stating the time frame for these actions to happen and who is assuming the liability for the mortgage during the offer to sell or refinance is important.  And in the case of a sale is the property to stay in the names of both parties pending a sale or is it titled to one person who will then split the proceeds of the sale. Sometimes having this ownership interest settled before any action is taken, can make the sale of a property move much quicker.

                Lastly, make sure that if the Court orders a deed be recorded along with the Divorce Decree that the deed is actually signed and recorded. The last thing divorced individuals want to do is to reopen their divorce action to clarify an ambiguous reference which is discovered years after the divorce has been finalized.

 

Attorney Cynthia M. Mehnert
Rudman Winchell Real Estate Attorney Cynthia M. Mehnert

 

Disclaimer


These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.