Question:
My wife had signed the quit claim deed form on the bank mortgage application forms. So the home is now paid off and the title is solely in my name.
Does Michigan law give her any rights to this property even though she has already signed the quit claim deed? Can I sell this property before we divorce or is it marital property?
Answer:
Yes, Michigan law does give your wife an interest in this property, and, no, you should not sell it in anticipation of your divorce – at least, not without a host of precautions. When it comes to divorce, in Michigan whose name is on the deed means very little. Think of it this way:
You owned your home prior to your marriage. You wrote the check for the down payment. You made every mortgage payment, kept the property taxes current, paid the utilities, funded the remodeling, even during your marriage. Only your name is on the title. So, the home is yours, right?
Not necessarily. "Title" to real estate is not the same as a "marital interest" in real estate. Title is the link between the person who owns property and the property itself – that is, it is the legal right establishing ownership. Marital interest, on the other hand, is a right to a share of the property.
In Michigan, this is an "equitable interest," meaning it is an interest not in law (by the deed) but in fairness (in the context of a divorce). This marital interest is why, for example, a husband who is the “sole owner” on his home mortgage or deed can end up having to pay his wife half the value of home’s equity at divorce.
What rights you and your spouse have to your home and the property inside depend on the facts of your case. If you are divorced, then your divorce decree should state those rights. If you are separated but not divorced, you are in a precarious position. If you deny your spouse access to the house, you may deprive her of other personal property (this is a crime in some states) or paint yourself as the unreasonable spouse bent on doing no good in court. This tarnishes your credibility. But, your spouse may encumber property or sell it and conceal the profits if you let him or her inside.
So, you must proceed with caution. If you intend to sell the home, full disclosure and an agreement with your wife not to divide the profits or treat them as an advance on the division of the marital estate are a must. But then, you may have “income” (profits) for child support and spousal support purposes. Therefore, you must, must, must discuss your plans with an attorney trained in divorce and property division before you proceed.
Keep in mind, although I am licensed to practice law in Michigan, I cannot give you legal advice specific to your case without meeting with you. Do not rely on this answer as establishing an attorney-client relationship, and contact an attorney immediately for advice. Cordell & Cordell does practice domestic relations law in Michigan, and we would be happy to assist you. Thank you for submitting your question to Cordell & Cordell.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.
