Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What is a lis pendens in Florida? This is a notice regarding real property which is recorded in public records and alerts the public to the fact that there is pending litigation concerning the property. The purpose of it is to give notice to any interested parties that title to the property is not clear and is in dispute. A party in a Florida divorce case might seek to put a lis pendens on a property because he or she wants to prevent the other party from selling or otherwise disposing of the property before the court makes a decision as to who owns the property. The case Rokosz v. Haccoun, 3D18-2459 (Fla. 3d DCA June 5, 2019) shows what limits can be placed on a lis pendens.
The parties entered a partial marital settlement agreement which in pertinent part reserved on the wife’s claim for attorneys’ fees, among other issues. The husband was awarded certain real property with the agreement that a lis pendens would be placed on one of the properties to secure the wife’s claim for attorneys’ fees. Subsequently, the husband entered a transaction with his father in which he traded real property granted to him in the partial agreement for real property owned by the father. The wife then filed an urgent motion to place a lis pendens on the new property acquired by the husband. After a hearing, the court determined the husband violated the status quo order of the court and granted the motion regarding the lis pendens.
The husband responded by filing a motion to discharge the new lis pendens, contending the property affected was his homestead and the lis pendens violated his constitutional rights. The trial court treated the husband’s motion as one for reconsideration and denied it. The husband appealed, arguing he was denied due process because he was prevented from presenting evidence at the hearing on his motion, and the court erroneously treated his motion as one for reconsideration.
The appellate court agreed with the husband, holding “In the instant case, in granting the former wife's motion for lis pendens, the trial court ruled that the former husband's transfer of the New York condominium and the Duval County parcels to his father violated the status quo order. In moving to discharge the lis pendens, the former husband did not ask the trial court to reconsider this ruling. Rather, the former husband moved to discharge the lis pendens on the Pompano Beach condominium arguing that the Pompano Beach condominium was his homestead, and therefore, pursuant to Article X, section 4(a) of the Florida Constitution, the property was exempt from levy or forced sale to enforce the former wife's claim for attorney's fees and costs. Thus, the trial court erred by treating the motion to discharge lis pendens as a motion for reconsideration of the trial court's order granting the former wife's motion for lis pendens.”
The case was therefore remanded for the trial court to hold an evidentiary hearing. Contact a Miami divorce lawyer to go over your case and to understand issues related to equitable distribution of your marital assets and debts.