In most divorce cases the parties involved usually settle their differences by some form of Property Settlement Agreement. When an agreement is reached, the parties may execute deeds dividing their property or may divide same by formal agreement. Alternately, the property may be divided by judgment. When a Property Settlement Agreement (PSA) is used by the parties to settle property rights, they normally list all of their property and then prepare a list of property that each is to receive. Following the list of property that one party is to receive, the other party may use granting or conveyancing language such as “does hereby grant, bargain and convey” such property to the receiving spouse. In such a case, the agreement itself will divest title and a deed is not necessary. The agreement, upon final hearing, will normally be incorporated into the judgment.
In cases where parties do not enter into a PSA, the division of marital property may be accomplished by judgment. In this event the judgment will set out or list the property that each party is to receive and will follow with wording as follows: “…It is therefore ordered adjudged and decreed by the Court that title to such property is hereby vested in…”. If title is vested and divested in this manner, it is not necessary that the parties execute deeds.
In some cases the parties may enter into a PSA and schedule the property that each is to receive with a provision that each party will execute all necessary instruments to carry out the Agreement. In such cases, the Agreement will not be effective until the instruments are properly executed. Divorce decrees, property settlement agreements, and all other types of partitions must be of record in the county clerk’s office to constitute judgment when one of the parties – most likely the plaintiff – will receive an equitable right to the property which may effect the title in numerous ways. Title should be examined carefully.