The fun part of being a family lawyer is that it involves so many areas of the practice of law. Almost every divorce case deals with some type of real estate. Oftentimes, this can be the most valuable asset the parties own. Obtaining the necessary facts, knowing the law on equitable division, thorough negotiation, and proper drafting of the Agreement and collateral documents are essential in properly representing a client in matters involving real estate as they go through their divorce. Hopefully, this presentation will expand the family practitioner’s knowledge of real estate as it affects the issue of divorce. And with today’s scary and volatile market, these issues are especially timely and important!
Divorce law is complex and different from state to state. Even when you think the law is clearly written, the courts may interpret it differently, or there may be precedent that says otherwise. When dealing with real estate issues, there are many overarching concerns you may not be aware of and laws that can usually be evaded if both parties agree. The attorneys at Smith Gilliam Williams and Miles are experts in divorce and real estate issues and will be able to effectively handle any issues that arise to successfully argue your case in court.
It is extremely important that the client identify each parcel of real estate that may be involved in their divorce action. General identification is simply not enough. Obtaining as many details as possible, including the history and acquisition of the tract, source of funds used to purchase the tract, improvements on the tract, current liens, title, and value of each piece will prove extremely beneficial to the case.
Protecting the Client
- Helpful Technology: Every client may or may not know each piece of real estate that is titled. The title may be held jointly and then later be transferred to one spouse or the other for refinance or tax purposes. It’s important to verify. If, by chance, the client does not know how the title to the real estate is held, researching the clerks website, tax records and maps and aerials could help you determine the current title holder.
- Lis Pendens: Now that each fact about the real estate property involved in the case has been gathered by the client, a Lis Penden will need to be immediately filed. A Lis Penden refers to any pending lawsuit or to a specific situation with a public notice of litigation that has been recorded in the same location where the title of real property has been recorded. A Lis Penden needs to be filed on any property titled solely in the name of the other spouse.
- Title examination: A title examination of the records is another method to checking the current title holder of the property or outstanding liens or taxes. In most cases, a limited title examination will be sufficient. After the examination, which is done by a professional examiner, the attorney or client will receive a title abstract or certificate reflecting the results of the title search.
- Joinder of necessary third part:. If a third party holds the title interest of the real estate involved, it may be necessary to add a third person, corporate entity or trust as a party to the pending divorce. Adding the necessary third party can be done when the complaint for divorce is initially filed simply by naming that third party as a co-defendant with the spouse and setting forth the allegations against the co-defendant within the complaint.
Equitable Division of Real Estate
In assessing the division of the real estate during a divorce, it’s important for the practitioner to remember that equitable division of property is the allocation of assets acquired during the marriage of the parties based on their respective equitable interests in those assets. Because of the complexity of these issues, it’s in the client’s best interest to consult with a professional attorney prior to beginning the divorce process.