Quitclaim vs. community property

Not a solicitation for legal advice.

I will be talking to a lawyer of my own soon. In the meantime I’m curious about one of the situations they’ll be dealing with for me.

A while back my wife and I decided to move across the country to my home state. Her idea was for me to go first to secure a good job. She would then sell the house and follow me. I got the job, but she began to come up with excuses for why she couldn’t do her part just yet. To hear her tell it you would think that it was impossible to move from one state to another. At one point she asked me to execute a quitclaim deed so that she could sell the house without my having to fly back and forth to sign papers. I, stupidly, did so. (Yes, I now recognize that a limited power of attorney would have done the job.)

Well, she never came, so I gave in and came back. Things did not work out, however, and now I’m seeking a divorce. I’ve mentioned the quitclaim to a couple of people both of whom should know about it, but I got two different answers. So I’m asking you guys. In a community property state (California) does the doctrine still apply even if a quitclaim was made? Is the quitclaim a meaningless document as one of my contacts has assured me? Is my half of the equity hers now?

Thanks in advance,

Going through something related to this right now.

A friend of mine who’s a real estate attorney says that for our case, even though the wife (my girlfriend’s step-mother) signed away the house with a quitclaim, in a community property state like California the law still says she has an interest in the house. We didn’t get into how much of an interest, but the community property thing definitely has an impact.

Couple of similar questions I found:


Thanks DarrenS, that’s encouraging.

I suppose that this is the kind of thing a judge would have to rule on, but it would be nice to know my chances.

I know we’ve got a bunch of attorneys on the board. If one would care to reply I promise to never tell another nasty lawyer joke again! (The preceding should not be construed as an admission of guilt. I don’t even know any of those jokes, I swear!)

IANAL, and all the standard disclaimers. But I suspect strongly that the quitclaim deed would come under the Statute of Frauds (whatever your previous state’s statutory code terms it), since the idea behind quitclaim deeds is to “settle disputed title” – e.g., since my great-grandfather putatively had some minor interest in the land that two other parties are negotiating about, and that interest descends to me, they agree to pay me some small sum to release any interest I may have in that land. Since your intent in executing it was to enable her to sell the land in the behalf of both of you, in order to facilitate the move, her claiming that you have released your interest in it would be fraudulent, and could be so argued in the course of the divorce proceedings.

Consult a lawyer. Ideally one familiar with the laws of the state in which your wife and the land are located.

I don’t think the main issue is the legal significance of the quitclaim.

The issue seems to be whether she broke an agrement between you; i.e. if you filled out the quitclaim under an agreement between you that you were doing it for the specific purpose of making it easier for her to sell your house. If she then didn’t sell the house, she’s broken her half of the deal. You relied on her; she didn’t do her part, so now she can’t take advantage of the situation. I think lawyers call that estoppel.

I am not a lawyer, and I’m glad you have a lawyer for this.

Good luck.

I am a lawyer, even licensed in your jurisdiction. I am not however, your lawyer, and you are not my client. This is, in addition, not legal advice.

In consideration of your agreement never to tell a nasty lawyer joke again (I do like the weasely nature of the promise, as it still permits you to tell non-nasty lawyer jokes), I hereby respond.

I’m glad you’re talking to a lawyer, because there are lots of other little facts missing from your OP that could swing this either way (who drafted the quitclaim? was it recorded? what’s the documentary record – letters, emails, etc.? what are the marriage’s other assets? what’s each party’s financial position? etc., etc.). Really, this isn’t my area so can only talk from general principles. What I gather from your OP is that your concern is whether the quitclaim effectively converted the house from community property to (her) separate property. The answer is maybe, but I don’t think it would stick. Unfortunately, I think that you will have to rely on your lawyer for the best answer.

Were this my problem, I would call your wife’s lawyer and let him or her know that your wife is going to have a significant credibility problem if she tries to claim that the quitclaim transmuted the property, and that the house is still community property because there was no intent to transmute it. Polycarp, I think your reference to the Statute of Frauds is about lack of consideration for transmuting the property, true?

In short, Rich Mann, while I don’t have an answer for you, I can assure of this: there are lawyers who will take on pretty much any case – that’s one of the reasons we’re routinely reviled – but what that means to you is that you will be able to find someone to help you fight this battle. You shouldn’t have to, and I hope that your wife does not, in fact, intend to claim the whole house. One other point, though: in divorce proceedings involving issues of support, the nature of the house may matter less. I hope your wife has a good job so she can’t claim support.

I’m sorry you have to go through this. I hope that your lawyer is a bulldog and that someone explains to your wife the consequences of committing fraud before she commits herself to a course of action that is much more expensive than it needs to be.

Thanks all. You’ve helped to allay my worries.

To answer Campion’s questions: She wrote the quitclaim and recorded it. Besides the house and two cars, that’s about it for assets. There’s no documentary record that I know of. And she has a solid, high-paid job.

I’ll be asking my lawyer as soon as I can get an appointment, but it really helps to know a little bit about what might happen.

Thanks again,