Filing a Lis Pendens in a Divorce in Arizona
A lis pendens is a type of notice that informs anyone who may purchase or provide a loan against a home or real property that someone other than the titled homeowner has filed a lawsuit contesting titled ownership of a home or other real property.
The lis pendens is filed in a court case and recorded in the county recorders office where the home or other real property is located.
The effect of a lis pendens is that it prevents the owner of the property from selling, refinancing or taking a loan against the property.
So, is there any reason for filing a lis pendens in divorce in Arizona?
The Arizona Court of Appeals in an unpublished decision in the case of Craig v. Craig addressed that question.
In the Craig case, Wife bought a home during the parties’ marriage. Husband signed a Disclaimer Deed to that property that stated the home would be Wife’s sole and sole and separate property.
Fraudulent Inducement, Community Liens, and Lis Pendens
Years later, the parties filed for divorce. The wife claimed the Disclaimer Deed made the home her sole and separate property.
The husband claimed he was fraudulently induced into signing the Disclaimer Deed and that the home was, therefore, community property.
Alternatively, he claimed there was a community lien against the home for improvements that were made to the home.
To protect his claims, Husband recorded a lis pendens against the home.
The wife claimed Husband had no basis to file the lis pendens against the house in their divorce and sought damages against Husband.
The trial court concluded Husband’s contributions toward the home created an equitable lien against the property which made it appropriate for Husband to have filed and recorded the lis pendens and denied Wife’s request for damages resulting from the filing of the lis pendens.
Wife appealed the divorce court’s ruling on these issues.
The Arizona Court of Appeals ruled Arizona Revised Statute section 12-1119 allows a person to file and record a lis pendens in any lawsuit that could affect title to a home or other real estate. The Court of Appeals found it to be irrelevant whether Husband did or did not have a claim for an equitable lien against the home. Instead, the question was whether had a claim that could affect a right incident to the title of the home.
The Court of Appeals concluded a divorce affects a right incident to the title to the home if a judgment entered by the divorce court would expand, restrict, or burden Wife’s rights bestowed by her title to the home.
A divorce court should not consider whether a party, such as Husband, will prevail on his or her claim of a community lien unless Husband’s claims are baseless.
The Arizona Court of Appeals concluded Husband’s claims that he was fraudulently induced into signing the Disclaimer Deed and community lien claims could have affected title to the home.
If Husband succeded in his fraudulent inducement claim, the nature of the home would have changed from sole property to community property.
If Husband had prevailed on the community lien claim, the community would have a lien against the home.
The timing of Filing Lis Pendens in an Arizona Divorce
One important question raised by the Court of Appeals was the timing of when the Husband filed and recorded the lis pendens.
The Court of Appeals indicated the lis pendens must be filed after a claim for fraudulent inducement and/or a community lien was raised in the pleadings during the divorce.
So, it is important that you first make the claim affecting title in your divorce before you file and record a lis pendens.
Contact our experienced Phoenix and Scottsdale Arizona divorce attorneys at (480)305-8300 to discuss your Arizona divorce case.
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Chris Hildebrand wrote this article about filing a lis pendens in an Arizona divorce to ensure everyone has access to information about divorce laws in Arizona. Chris is a divorce attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and actually caring about what his clients are going through in a divorce.