What Are the Consequences in Divorce or Death of Putting My Name on the Deed?
Full Question:
Answer:
If you are named on the deed, you will have joint ownership rights to the property. Typically, husband and wife are joint tenants with right of survivorship, so that the survivor inherits the share of the first deceased spouse automatically on death. However, if named on the deed as tenants in common, he could decide in his will to leave his share of joint property to another.
Joint tenancy is a form of ownership by two or more individuals together. It differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in both real and personal property. Joint tenancy property passes outside of probate, however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. A joint tenancy between a husband and wife is sometimes known as a tenancy by the entirety. Tenancy by the entirety has some characteristics different than other joint tenancies, such as the inability of one joint tenant to sever the ownership and differences in tax treatment. In some jurisdictions, to create a tenancy by the entirety the parties must specify in the deed that the property is being conveyed to the couple "as tenants by the entirety," while in others, a conveyance to a married couple is presumed to create a tenancy by the entirety unless the deed specifies otherwise. Each joint tenant has an equal, undivided interest in the whole property. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate. A joint tenant may convey his or her interest to a third party, depending on applicable state law. This conversion would in effect terminate the joint tenancy and create a tenancy in common.
Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.
In divorce cases, having ownership of the property strengthens one's position in dividing assets. Colorado is an equitable distribution state, which means that the court will set aside to each spouse that spouse’s separate property and divide the marital property between the parties as the court deems equitable and just, after considering all relevant factors, such as:
1. The contribution of each spouse to the acquisition of the marital property;
2. The value of the property set aside to each spouse;
3. The economic circumstances of each spouse at the time of the property distribution, and;
4. Any increase or decrease in the value of the separate property of the spouses during the marriage or the depletion of the separate property for marital purposes.
