Legal Question in Real Estate Law in California

two quit claim deeds after divorce

Year 2000, divorce in Nm.

2006 my ex filed the motion of modification.

He wants to force a sale of the condominium,

located in California, bought in 1996.

Divorce decree says, in case of sale, equity divided

equally between him and me.

Both our names were on the title at the moment ofdivorce.

2001 ex signed quit claim deed to himself and me,tenants in common.

In 2002 he signed another quit claim deed, to my present husband, himself and me, tenants in common. Different RE lawyers have different opinions how the ownership is distributed now,

but it is not 50/50 between ex and me.

My questions are;

If the property is going to be ordered sold by

Family Court in Albuquerque, will the court

order overrule deeds and the present division

of property ?

Will I have to pay my ex 50% of present , huge

equity ? What with my present husband part ?

please help;

Asked on 8/17/06, 5:10 pm

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: two quit claim deeds after divorce

I'd say the effect of the first deed was to break a joint tenancy or other form of ownership that had a right of survival, and convert it to a tenancy in common. This is often done by one co-owner when (s)he has a change of mind about who should inherit his or her half interest.

The effect of the second quitclaim deed may be as Mr. Koenen says, or it may have no effect at all, depending, I think, on how the property interest being granted is stated in the granting clause.

A court in ruling on it would try to determine the intent of the parties, viewed objectively. This means the judge wouldn't try to "get inside your ex's head" to figure out his subjective, personal intentions; instead, the judge would focus on what the words used would mean to an average, reasoonable, well-educated person who read the words and gave careful thought to what the grantor must have intended to do at that time. The choice of words may control, and an attorney who can see and read the deed will be at a great advantage in telling you its effect.

Interesting that New Mexico law allows a follow-up order after six years. In California, the court might not have jurisdiction over the parties any more. This is a side comment - both NM and divorce are outside my turf.

As to decree vs, deed - I think I n\tackled this issue in a previous response. If it wasn't for you, read my recent LawGuru answers. The basic analysis is that recorded deeds show legal ownership, which is presumptively the same as "true" (or beneficial, or equitable) ownership, but a valid court decree, among other things, can be the basis for proving that true ownership is different than shown in the deeds.

If your ex has in fact executed, delivered and recorded a deed that alters the 50-50 tenancy in common, very likely this deed would be given effect by a court, since there is nothing to prevent your ex from making a gift of a fractional interest after the decree establishing the interests at 50-50. However, that presumes Mr. Koenen's view of the effect of the deed.

I guess this all sounds very complicated. This is because it involves the laws of two states (CA and NM), jurisdiction issues, a deed language interpretation problem, and explaining the distinction between legal and equitable title to real property.

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Answered on 8/18/06, 12:27 pm
Ken Koenen Koenen & Tokunaga, P.C.

Re: two quit claim deeds after divorce

First of all, he could not change your ownership interest by issuing a quit claim deed. You originally had a 50% interest, and he had a 50% interest.

His second deed would most likely only affect his original 50% interest. That would mean that you have your original 50% interest, you have a 1/3 of 50% interest, your husband has a 1/3 of 50% interest, and your ex has a 1/3 of 50% interest.

Which would prevail, the court order in New Mexico or the deeds in california, is hard to say. However, since he voluntarily signed the documents AFTER the court order, it could easily be argued that the later deeds would prevail.

Of course, he might claim that he made a mistake, and that was not his original intent.

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Answered on 8/17/06, 5:24 pm

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