Using a Lis Pendens in a Georgia Divorce
Lis pendens translates as “lawsuit pending.” More than just a legal concept, lis pendens can be a powerful legal tool for protecting your rights during a divorce. When you file a lis pendens notice, it alerts all involved parties that the ownership of property named in the notice (strictly real estate in Georgia) is contested and subject to a pending legal decision. Therefore, it could be awarded to an individual as the result of the lawsuit.
A Lis Pendens as Property Protection
Under Georgia law, no property is to be sold or given away after filing for divorce. However, do not rely on this law to protect your property. If no lis pendens was filed and a buyer purchases real estate contested in your divorce with no knowledge that it is subject to divorce proceedings, then you may be unable to recover the property, even if the judge awards the property to you in the settlement.
You do not have to risk the loss of your home or other real estate. A properly filed lis pendens notice will protect real estate you have a right to with your spouse. You must file a separate lis pendens for each piece of real estate you wish to protect. The lis pendens is real property or lien docket of the county where the property is located. This ensures that any potential buyer will become aware that ownership of the property is contested and could therefore be lost once the divorce is finalized. In most cases, a buyer who discovers a lis pendens will not proceed with such a purchase.
Filing a lis pendens will also aid you in recovering any sold property. All property against which you file a lis pendens will be dealt with as decreed in the final divorce settlement. If, for example, you file a lis pendens notice for your marital home, you are awarded the home in the divorce, and your spouse then sells it, the buyer will be required to turn the property over to you at settlement and your spouse will be required to reimburse the buyer for his or her costs.
Types of Property on which a Lis Pendens can be Filed
Lis pendens applies to real property. Real property is defined as land and all the things attached to it. Examples typically related to a divorce action are:
- Marital Homes
- Vacation Homes
- Rental Property
- Undeveloped land
Things that are not real property include:
Perhaps the most important consideration in protecting your real estate is correctly completing and filing the requisite paperwork. This makes it essential to consult an attorney to assist you in filing any appropriate lis pendens. If the notice is not properly completed and filed, it may not be recorded. This will likely leave potential buyers unaware of the pending divorce case and the resulting risk they incur in purchasing the property. This could make it difficult, if not impossible, to regain your property once sold.
Lis Pendens vs Standing Order/Contempt
When a divorce is filed, typically a “standing order” goes into effect. A standing order states, among other things, that neither party should sell any marital property, to include real property. If a person violates a standing order by selling such property, the other party can file a contempt action to have the guilty party punished. However, this may not “un-sell” the property. Furthermore, a standing order will not prevent a sale the way a lis pendens will. To understand the difference, think of a lis pendens as a shield that will protect a piece of real property from being sold. A standing order, and the following contempt action if the standing order is violated, is a sword to punish someone for selling something they should not have sold.
To help you understand further, here are two scenarios of how things could work out:
A husband and wife are getting a divorce. The husband has a lis pendens drawn up and filed by his attorney, which is attached to the party’s marital residence. The wife tries to sell the marital residence without his knowledge but is unable to do so because lis pendens blocks the sale. The marital residence remains unsold until the parties settle their divorce or the court awards the home to one party following a trial.
A husband and wife are getting a divorce. Because the husband had control of the family finances during the marriage he convinced the wife it was not necessary for her to be present at the time the house was purchased during the marriage therefore her name is not on the deed. Neither party files a lis pendens. A standing order was entered by the court. The husband sells the marital residence without the wife’s knowledge. She discovers the sale and files a contempt action against him to get the proceeds from the sale and to have the court punish him for violating the standing order. The marital home will remain sold.
If only one of the parties in a divorce is listed as the owner of a piece of real property, it would be best for the party that is not listed to file a lis pendens. This is because if only one party is listed as the owner, they may be able to execute a sale of the property without the other party’s signature. A lis pendens would stop a sale before it happened.
If both parties are listed as owners of a piece of real property, a lis pendens may be less necessary but something you would still want to consider.
Contact an Attorney
As you work through your divorce proceedings, make sure that you have the best representation by your side. The attorneys at Stearns-Montgomery & Proctor can leverage a lis pendens notifications to help make sure you keep the marital property you deserve. Contact us today to schedule a consultation.