In order to understand the significance of a lis pendens in a divorce proceeding, it is crucial to understand the actual meaning of the words “lis pendens”. What is a lis pendens? The term “lis pendens” means a pending lawsuit. Quite often parties to a divorce own real property. When the circumstances are far from amicable and the real property is titled just in the name of one spouse, it is imperative that a Notice of Lis Pendens is filed as part of the divorce action and recorded in the official records so that the referenced real property is preserved for equitable distribution, alimony, equalizer payment, fees, etc. and is otherwise available during the divorce proceedings. A recorded Notice of Lis Pendens places third parties or the public at large on notice that a lawsuit has been filed which concerns title to that certain real property referenced in the filed and recorded Notice of Lis Pendens.
This means that the record title holder (the party whose name is on the deed) would be prevented from selling or taking any other action regarding the property subject to the Notice as the Notice would be considered a “cloud on the title” until the underlying lawsuit (the divorce action) is concluded and the Notice is released. As such, a Notice of Lis Pendens is a powerful tool that should not be overlooked when a divorce action is contemplated.
However, even when the underlying allegations of the petition would make the filing and recording of the notice of lis pendens proper, that Notice of Lis Pendens must still comply with certain statutory requirements contained in Section 48.23 of the Florida Statutes.
Pursuant to Section 48.23(1)(c) of the Florida Statutes, a notice of lis pendens must contain the following (when filed as part of a lawsuit, such as an action for dissolution of marriage):
- The names of the parties.
- The date of the institution of the action, the date of the clerk’s electronic receipt, or the case number of the action.
- The name of the court in which it is pending.
- A description of the property involved or to be affected.
- A statement of the relief sought as to the property.
When a notice of lis pendens is filed on the same date as the pleading upon which the notice is based (such as the petition for dissolution of marriage), the clerk’s notation of the date of receipt on the notice would satisfy the requirement that the notice contain the date of the institution of the action. See 48.23(1)(c)2, Florida Statutes (2016).
So what makes a notice of lis pendens proper? A notice of lis pendens would be appropriate when there is a nexus between the lawsuit and the real property subject to the notice of lis pendens. In other words, a notice of lis pendens would be proper if the proponent (the petitioner) can establish a “fair nexus between the apparent legal or equitable ownership of the property on which the notice of lis pendens [is] filed and the dispute embodied in the lawsuit.” Acapulco Construction, Inc. v. Redavo Estates, Inc., 645 So. 2d 182, 183 (Fla. 3d DCA 1994). There has to be a connection between the real property and the lawsuit; otherwise, a notice of lis pendens can be dissolved or stricken.
Consequently, when a divorce looms on the horizon, the propriety of a notice of lis pendens should definitely be considered.