Whenever a party with title to or an interest in property is involved in a divorce or dissolution of marriage proceedings, it is necessary to determine the legal effect of the proceedings on the title to the property.
To determine the validity of a decree of divorce or dissolution of marriage and its effect on any title to property, ascertain:
The validity of the decree:
- The court must have jurisdiction over the subject matter of the action under state law.
- Did the court have jurisdiction over the parties to the action? We require that the spouses make a personal appearance or waiver, or be personally served in the divorce. Otherwise, contact the National Legal Department.
- Does the court have jurisdiction over the land? Do not rely upon a divorce decree divesting and vesting title if the land is not located in the state where the court is located.
- Is the decree final? Is there any possibility of appeal or review? Do not rely upon decrees which are not final unless the parties agree to the substance of the decree.
The specific provisions of state law pertaining to divorces or dissolutions of marriage.
The legal consequences of the decree in regard to dower, curtesy, homestead, or marital rights.
The nature of the interest held in the land:
- Title is held by one spouse only.
- Title is held by both spouses as joint tenants.
- Title is held by both spouses as tenants by the entirety.
- Title is held by both spouses as community property.
Whether the decree terminates the interest in the land of one of the parties by adjudicating it to the other. If the decree sufficiently vests title in the other spouse, a certified copy of the order must be filed in the clerk's or recorder's office in each state in order to constitute constructive notice. Although there are differing cases on whether a certified copy of the divorce decree must be recorded to be effective against a federal tax lien if a deed is not secured and recorded, recordation should be required to impart constructive notice to bona fide purchasers and creditors. See Prewitt v. United States, 792 F.2d o1353 (5th Cir. 1986); Filicetti v. United States, 2012 U.S. Dist. LEXIS 23308 (D. Idaho Feb. 23, 2012); J. David Beasley, “Federal Tax Liens and the Unrecorded Divorce Decree,” 91 Neb. Law Review 213 (2012).
Whether the decree orders one of the parties to convey that party's interest in the land to the other. If the decree does not sufficiently vest title in one spouse by other provisions of the decree, we require a deed from the other spouse if the decree orders a conveyance.
Whether the decree of divorce orders the property to be sold by a public officer and the proceeds of the sale to be distributed as provided in the decree. Under state law, a subsequent court order authorizing the sale may be necessary and such an order must be final unless agreed to in substance by all relevant parties.
Whether, in addition, the decree provides for any of the following:
- Alimony payments.
- Child support payments.
- Lump sum of money payment; is there a state lien for nonpayment of child support?
- Additional property rights in the land.
- Restoration of the wife's maiden name or former name under a previous marriage.
Whether within the same county, the entering of a decree awarding a money judgment for alimony, maintenance, child support, etc., constitutes by itself a lien on real property, or whether it is necessary to record a transcript or a certified copy of the decree in the real estate records in order to constitute a lien on the land.
Whether, a transcript or certified copy of a decree entered in another county within the state has been properly filed or recorded in order to constitute a lien on real property in the county where the land is located.