Marquee Background
Marquee Background

Offit Kurman Blogs

Real Estate

When's A Property Settlement Agreement Not A Property Settlement Agreement? (Part One)

November 20, 2023

By Thomas W. Repczynski

Originally posted on 11/20/19, content updated on 11/20/23

In this first of a multi-part series, (read part two here) I address some of the multiple potential “uses” to which one can put a property settlement agreement, or PSA, to use when other options aren’t available.

“How’s that?” you ask.  For starters, to constitute a deed in Virginia at least, one thing not required of a document is that it be titled “deed” to be a deed.  To be a valid Virginia deed, a document – regardless of its title — must reflect a “present intent to transfer” to an identifiable recipient and actually be signed by one transferring an interest insufficiently identified the real property.

In the course of assisting a judgment-creditor client pursue a multi-million dollar, post-judgment collection, we sought to reach some real property of a debtor in partial satisfaction of the judgment amount. The crafty debtor had successfully avoided finalizing his divorce from his estranged wife such that, according to the land records at least, the couple’s real property appeared to remain subject to “tenancy by the entirety” (TBE) protection from creditor claims.  However, a little third-party discovery from the debtor’s estranged spouse confirmed that she claimed no interest in the property pursuant to a legally enforceable PSA entered into by the estranged spouses (despite not having finalized their divorce). The PSA terms included an expression of her present intent to transfer to the debtor-spouse all of her interest in the couple’s real property, which was sufficiently identified for Virginia deed purposes.

Our adversary sought pre-trial dismissal arguing (among other things) that a PSA could not be a deed and that even if one could, this PSA wasn’t one because it lacked any “present intention to transfer” language.  Accepting the premise that the PSA itself could legally be a deed, the Circuit Court refused to dismiss the case, and instead, afforded the judgment-creditor the right to have a jury decide whether the PSA sufficiently expressed the non-debtor spouse’s “present intent to transfer” the real property.

Voila!  When is a property settlement agreement not a property settlement agreement?  When it’s a deed!  In my example, a little creative lawyering (and a receptive, open-minded judge!) afforded the judgment-creditor client newfound negotiating leverage from a seemingly unassailable TBE property interest of a “married” judgment-debtor.  At least on that occasion, called upon to serve the judgment-creditor’s need as “deed,” the estranged couple’s PSA unwittingly “doffed” its name, yet smelled every bit as sweet, indeed! (See what I deed there?)

Categories: Real Estate

Resources

Related People

  • Posts
  • About
  • Subscribe

Firm Highlights

  • Blog Posts
    Law, Love, and Life's Battles: Facing Breast Cancer
    What happens to a marriage and a family when a breast cancer diagnosis changes everything? In this episode of Love Ends, Law Begins, hosts Fara Rodriguez and Stephanie Lehman have a deeply personal conversation about breast cancer, marriage, family, and the challenges that can come with a serious illness. This episode is especially meaningful for Fara, who shares her own recent breast cancer diagnosis and journey. She opens up about discovering a lump, receiving her diagnosis, undergoing a double mastectomy and subsequent treatments, and navigating the emotional impact of cancer while continuing to work and care for her family. Fara and Stephanie discuss how a cancer diagnosis can affect a marriage in unexpected ways—from changing family roles and creating new caregiving responsibilities to putting pressure on finances, health insurance, and household responsibilities. They explore how illness can either bring couples closer together or create additional challenges, particularly when one spouse becomes the primary caregiver or when the family is dealing with fear and uncertainty. The conversation also addresses the unique challenges of parenting during an illness, including how to talk to children about a cancer diagnosis and how divorced parents may need to adjust parenting schedules and responsibilities when one parent becomes sick. From navigating medical expenses and insurance coverage to balancing work, parenting, caregiving, and intimacy, Fara and Stephanie offer a candid look at the ways illness can reshape relationships and family dynamics. In recognition of Breast Cancer Awareness Month, this episode provides an honest and personal conversation about facing cancer while navigating marriage, family, and the many practical challenges that come with a serious diagnosis. In this episode, you'll hear about: • Fara's personal breast cancer diagnosis and journey • How a cancer diagnosis can affect a marriage • The challenges of becoming a caregiver to your spouse • How illness can bring couples closer together—or create new challenges • Talking to children about a parent's cancer diagnosis • How divorced parents can navigate parenting responsibilities when one parent becomes ill • The financial impact of illness and the loss of household income • Health insurance and medical coverage considerations • How medical expenses can create additional financial strain • The importance of support from family, friends, and caregivers • Balancing work, parenting, treatment, and recovery • How illness can affect intimacy and marital dynamics • The importance of supporting children through a parent's illness • Why communication and cooperation matter during a health crisis • Breast Cancer Awareness Month and the importance of mammograms
  • Events
    AIA Tri-State Conference
    Princeton will serve as the backdrop for three days of connection, learning, and design leadership. From keynotes to tours to the Tri-State Design Awards, this year’s conference is designed to go far beyond education sessions. Kick off the week with pre-conference intensives and individual state component Design Award celebrations, followed by three days of education, inspiration, networking, and design excellence at the 2026 AIA Tri-State Conference—featuring pre-conference intensives, three keynote speakers, 25 education sessions, curated tours, an expo, spec academies, and the AIA Tri-State Design Awards—bringing together architects and design professionals from New Jersey, New York, and Pennsylvania to connect, learn, and celebrate the best of the profession. G2. Designing Secure Practices: Cybersecurity, Data Privacy, Contractual Provisions, and Insurance Risks for Architects (4:00 PM - 5:30 PM) Architects and design professionals increasingly rely on cloud platforms, BIM software, and digital tools to manage sensitive data, creating cybersecurity and privacy risks. A single incident can trigger liability claims, regulatory obligations, reputational harm, and insurance challenges. Yet many firms underestimate how contracts, insurance, and internal practices intersect during a breach. This program offers legal and insurance perspectives on cyber risk in architecture, examining liability exposure, risky contract provisions, and mitigation strategies. A cyber insurance expert will explain policy responses, coverage gaps, coordination with professional liability, and best practices for aligning insurance with contractual risk and protecting firms from evolving cyber threats. Learning Objectives: Identify key cybersecurity and data privacy risks faced by architecture firms and explain how these risks can impact professional liability and project outcomes. Analyze common contractual provisions to determine which clauses may increase exposure to cyber incidents and propose strategies to mitigate these risks. Evaluate the scope and limitations of cyber insurance policies, including coordination with professional liability coverage, to determine how a policy would respond in a breach scenario. Develop actionable risk management strategies by integrating legal, contractual, and insurance considerations to protect sensitive client and project data.