WAIVED HOMESTEAD RIGHTS AND QUITCLAIM DEEDS IN DIVORCES

What is a Quitclaim Deed?

Any transaction involving real estate must be made by a deed. A deed is the transaction between the parties and a quitclaim deed is a deed that transfers all of one parties’ interest to another party. A quitclaim deed in a divorce or legal separation gives one party the sole ownership of the property. This allows that party to sell or mortgage the property without the approval or consent of the other party.

In Hulke v. International Mfg. Co., 142 NE 2d 717 (Ill: Appellate Court, 2nd Dist. 1957), “A quit claim deed conveys only the grantor’s interests in the property described therein.” Illinois law takes a specific approach to a quit claim deed as it outlines what a quit claim deed must say to be effective. Quitclaim deeds may be, in substance, in the following form: The grantor (here insert grantor’s name or names and place of residence), for the consideration of (here insert consideration), convey and quit claim to (here insert grantee’s name or names) all interest in the following described real estate (here insert description), situated in the County of …., in the State of Illinois. Dated (insert date). (signature of grantor or grantors).

What is a Homestead Right?

A homestead right is a law that protects a family's home from being taken away to pay off debts, unless the owners have agreed to use the home as collateral. This law is also called a homestead exemption or homestead law.

Waiver of a Homestead Right

IL statutes state that the signature of a spouse is required in order to effectively waive a homestead interest. The Illinois Rights of Married Persons Act states, “Neither the husband nor wife can remove the other or their children from the homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition of life in the family…” When an individual releases or waives their homestead right, the release or waiver is not effective if the individual is married. Under the statute, an effective release or waiver of homestead rights requires the consent of both spouses.

If both spouses are not on the deed and the property is not a homestead, the owner spouse can do whatever they want with the property in their name. Under 750 ILCS 5/503(e), “interest in marital property shall not encumber that property so as to restrict its transfer, assignment or conveyance by the title holder unless such title holder is specifically enjoined from making such transfer, assignment or conveyance.”

Can A Spouse Claim the Property After Waiving Their Homestead Right?

If a spouse waives their homestead right through a quit claim deed on a non-marital property, the spouse who owns the property can sell it without the other spouse’s consent after the homestead right has been waived.

Thus, a party cannot claim the property later on as marital property after waiving their homestead right through a quit claim deed. Once the quit claim deed is signed and recorded, the party loses their rights to the property. The quit claim deed is the final transfer to one party and that party can make decisions regarding the property such as selling it.