Full question:
My wife and I are separated. We are in the process of being divorced in Washington state. However, I own a house in Virginia that I'm going to sell. I bought the house prior to the marriage and my wife doesn't make any claim to it. Am I going to need her signature at closing if it sells. And if so, what form can I have her sign now to have handy when I need it? Would a quit claim work even thought VA is a separate property state and only my name appears on the deed.
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: Virginia
Answer:
As you know, Washington is a community property state, meaning in part that property acquired during the marriage will be divided equally and property acquired prior to marriage is considered separate property.
Since the property in Virginia would not be considered a homestead for either of you, the homestead laws there would not create any rights for a spouse not listed on the title.
In an "equitable distribution state" state, like Virginia, all property acquired during the marriage is "marital property" and all property is divided into marital property (which means it is both yours and your spouse's) and non-marital property ( which means the property belongs to either you or your spouse alone).
Here is a little summary on how homestead laws work in Washington. The property claimed as a homestead must be actually intended or used as the principal home for the owner. Primary residence refers to a dwelling where a person usually lives. It may be a house or apartment, and at a given time, a person shall not have more than one primary residence. Primary residence is the legal residence of an individual, for purposes of income tax calculation or for acquiring a mortgage. Generally a person’s primary residence is determined based on the mailing address, telephone listing, the time spent at the residence per year and such other factors.
Please see the following Wa statute:
RCW 6.13.010 (1) The homestead consists of real or personal property that
the owner....
(1) The homestead consists of real or personal property that the owner
uses as a residence. In the case of a dwelling house or mobile home, the
homestead consists of the dwelling house or the mobile home in which the
owner resides or intends to reside, with appurtenant buildings, and the
land on which the same are situated and by which the same are surrounded,
or improved or unimproved land owned with the intention of placing a house
or mobile home thereon and residing thereon. A mobile home may be exempted
under this chapter whether or not it is permanently affixed to the
underlying land and whether or not the mobile home is placed upon a lot
owned by the mobile home owner. Property included in the homestead must be
actually intended or used as the principal home for the owner.
(2) As used in this chapter, the term "owner" includes but is not limited
to a purchaser under a deed of trust, mortgage, or real estate contract.
(3) As used in this chapter, the term "net value" means market value less
all liens and encumbrances senior to the judgment being executed upon and
not including the judgment being executed upon.
RCW 6.13.020 If the owner is married, the homestead may consist of the
community or....
If the owner is married, the homestead may consist of the community or
jointly owned property of the spouses or the separate property of either
spouse: PROVIDED, That the same premises may not be claimed separately by
the husband and wife with the effect of increasing the net value of the
homestead available to the marital community beyond the amount specified in
RCW 6.13.030 as now or hereafter amended. When the owner is not married,
the homestead may consist of any of his or her property.
RCW 6.13.030 A homestead may consist of lands, as described in RCW
6.13.010,....
A homestead may consist of lands, as described in RCW 6.13.010,
regardless of area, but the homestead exemption amount shall not exceed
the lesser of (1) the total net value of the lands, manufactured homes,
mobile home, improvements, and other personal property, as described in
RCW 6.13.010, or (2) the sum of one hundred twenty-five thousand dollars
in the case of lands, manufactured homes, mobile home, and improvements,
or the sum of fifteen thousand dollars in the case of other personal
property described in RCW 6.13.010, except where the homestead is subject
to execution, attachment, or seizure by or under any legal process
whatever to satisfy a judgment in favor of any state for failure to pay
that state's income tax on benefits received while a resident of the
state of Washington from a pension or other retirement plan, in which
event there shall be no dollar limit on the value of the exemption.
A quit claim deed contains no warranties and the seller doesn't have liability to the buyer for other recorded claims on the property. The purchaser takes the property subject to existing taxes, assessments, liens, encumbrances, covenants, conditions, restrictions, rights of way and easements of record. However, a person who obtains a mortgage is still liable for mortgage payments after executing a quit claim deed on the property securing the mortgage. The quitclaim is often used among family members or from one joint owner to the other when there is little question about existing ownership, or just to clear the title. A written document for the transfer of land or other real property from one person to another. A quitclaim deed conveys only such rights as the grantor has.
When the marital community ends as a result of divorce or separation, the community assets (money and property) are divided between the spouses. Each spouse is taxed on half the community income for the part of the year before the community ends. However, see Spouses living apart all year , earlier. Income received after the community ended is separate income, taxable only to the spouse to whom it belongs.
An absolute decree of divorce or annulment ends the marital community in all community property states. A decree of annulment, even though it holds that no valid marriage ever existed, usually does not nullify community property rights arising during the “marriage.” However, you should check your state law for exceptions.
A decree of legal separation or of separate maintenance may or may not end the marital community. The court issuing the decree may terminate the marital community and divide the property between the spouses.
A separation agreement may divide the community property between you and your spouse. It may provide that this property, along with future earnings and property acquired, will be separate property. This agreement may end the community.
Please read the following IRS summary regarding tax treatment:
http://www.irs.gov/publications/p504/ar02.html#en_US_2010_publink1000176028
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
