Clients often ask, “What the heck is a lis pendens and why do we have to do it?”

Lis pendens is a Latin term meaning “litigation pending.” It’s a notice filed on land records in a town where a party has an interest in real estate, after any type of lawsuit, including a divorce action, is served. The purpose of a lis pendens is to put the world on notice that an interest in a property may be subject to distribution by the court. It’s a form of attachment of real property. 

In Connecticut, in a divorce action, we use a lis pendens to protect an interest in real estate while a divorce is pending:

• from being sold;
• from being mortgaged, to get equity out of the property;
• to prevent other creditors that a litigant may have from attaching the property to the detriment of the other spouse.

A Lis Pendens protects your interest in real estate, regardless of whether you or your spouse holds title, while a divorce is pending.

A Lis Pendens can be filed not only against a property that is owned in an individual’s name, but property in which that individual has some sort of beneficial interest. It’s not just a legal title that enables the filing of a Lis Pendens; it’s any interest that a person might have in a piece of real property, whether or not that interest is apparent on the land records. For example, if your spouse owns an interest in an LLC, and the LLC is the title owner of the real estate, a Lis Pendens can still be filed against the property even though your spouse doesn’t own it individually, or may own it with other persons.

Automatic court orders are in effect as soon as a divorce is filed, which prohibits either party from selling or otherwise encumbering any property, including real property. But once that cat is let out of the bag, it’s hard to wrestle back in. If a good faith buyer purchases the property while a divorce is pending, because a title search shows clear title, the property is gone and while the seller may be held in contempt, the property cannot be recovered from that good faith buyer. We need to file this notice on the land records that this individual piece of real property is owned by a party who is being sued in a divorce action, and that this real estate cannot be sold or otherwise encumbered until the lawsuit is concluded.

A Lis Pendens is served by a marshal on all owners of the property, not just the person who is a party in the divorce. If a party to a divorce owns more than one piece of real property, a separate Lis Pendens must be filed for each. Once the Lis Pendens is served on all owners, the marshal must record it at City Hall in the town in which the property is located. There is a service fee for the marshal, depending on how many parties are served, and a recording fee payable to the City Clerk of $53 for the first page and $5 for each subsequent page. Do not be penny wise and pound foolish – this is money well spent.

Regina M. Wexler
regina@wexlerfamilylawct.com
wexlerfamilylawct.com
(860) 307-9481