Massachusetts Agencies

Quarterly Questions and Answers

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Fall 2005, Volume 4, Number 4

Quarterly Questions and Answers
by Lynne Murphy Breen, Underwriting Counsel

Question: I have a closing coming up and the Sellers are getting a divorce. How does that affect title?

Answer: If the Sellers are either divorced or in the process of getting a divorce, you need to review the divorce papers filed with Department of Probate. You should review the separation papers, taking note of any judgments granted and the orders of the Court. Be sure to pay particular attention to any directives from the Court on how the sale proceeds should be divided. Prior to the closing, make sure to verify any directives in the separation agreement with the respective Sellers’ attorney(s).

You also need to pay particular attention to Supplemental Probate Court Rule 411 and the Divorce/Separate Support Summons (the Probate and Family Court Department Form CJ-D 110A), which places a restraining order on both parties in the divorce and prohibits them from encumbering or selling any property (see discussion below).

Question: What if only one spouse is the record owner of the property? Since one person owns it solely, can’t the spouse just deed the property without regard to the divorce?

Answer: No. Once there is a filing of a divorce or action for support, the record owner spouse is prohibited from conveying title or mortgaging the property.

The Divorce/Separate Support Summons (the Probate and Family Court Department Form CJ-D 110A) contains an automatic restraining order. This restraining order prohibits both parties to the divorce/action for support from taking certain actions relating to both their finances and real property. This includes conveying or mortgaging any real property in which they hold title.

The order is effective until either:

1) The is order is modified or dissolved by the court;

2) The order is modified by a written agreement of the parties with court approval;

3) There is an entry of a judgment of divorce or separate support;

4) The action is dismissed; or

5) By further order of the court.