By Judy S. Howard, Esq. · Certified Divorce Real Estate Expert
You’ve negotiated hard and have the best possible deal for your client. Both parties have signed. The agreement is airtight — or so it seems. Then the property gets listed, and suddenly there are problems nobody anticipated.
As a Certified Divorce Real Estate Expert, I work at the intersection of legal agreements and real estate execution. What I see repeatedly is that even well-crafted agreements can contain language that is vague, unworkable, or silent on issues that become critical once a home actually goes to market. Here are the most common gaps — and the language tweaks that prevent them.
Gap 01
“List at Fair Market Value” Without Defining the Process
Agreements often specify that the home shall be listed at fair market value, but don’t address who selects the agent, what happens if the parties disagree on list price, or how long the property stays on market before a price reduction is considered. Without this, a listing can stall for months.
Tighter language includes
A defined agent selection process · an agreed-upon mechanism for price reductions after a set number of days on market · a timeline for listing
Gap 02
Buyout Provisions Tied to an Appraisal With No Expiration
Agreements sometimes reference a specific appraisal value for a buyout with no expiration date on that value. In a shifting market, a 6-month-old appraisal can be wildly inaccurate — creating disputes, financing problems, or an underwater buyout.
Tighter language includes
An appraisal validity window (typically 90–120 days) · a re-appraisal trigger if closing doesn’t occur within that window · clarity on who pays for a second appraisal · always specify a closing deadline for a buyout, regardless of how the price is set
Gap 03
No Decision-Making Protocol for Offers
What happens when a strong offer comes in and one spouse wants to accept it and the other doesn’t? Agreements frequently specify that the home will be sold but are silent on how offer decisions get made.
Tighter language includes
A defined response window for each party to accept or reject an offer · a mediator or other third party as a tiebreaker for disputes · a floor price at or above which neither party may unilaterally reject an offer
Gap 04
Repair and Inspection Responsibilities Are Unassigned
Once a buyer does an inspection, repair or credit requests arrive — and if the agreement doesn’t address who authorizes and pays for repairs, the transaction can grind to a halt while attorneys get looped back in mid-escrow, with the delay potentially resulting in a terminated purchase contract.
Tighter language includes
A repair or credit authorization limit (e.g., either party can approve repairs up to $X without the other’s consent) · clarity on whether repair/credit costs come off the top of proceeds or are allocated individually · who serves as point-of-contact for the listing agent
Gap 05
Occupancy and Utility Obligations During the Listing Period
If one spouse remains in the home during the listing, who pays the mortgage? The utilities? What are their obligations around showings, cleanliness, and access? Silence here is a frequent source of conflict.
Tighter language includes
A defined occupancy agreement for the listing period · clear showing access requirements · who is responsible for carrying costs during the marketing period
None of these gaps are a reflection of poor lawyering — they’re simply areas where real estate execution details fall outside the typical scope of a settlement negotiation. The good news is that a brief consultation with a CDRE early in the process can surface these issues before the agreement is signed, rather than after the transaction is already in trouble.
If you have a case with real property on the table, I’m happy to do a complimentary pre-listing review.
Judy S. Howard, Esq.
Certified Divorce Real Estate Expert
Kamuela, Hawaii ·
cdrehawaii.net
O: 808 885 5588 · C: 808 896 5786 · F: 888 283 0247
COMPASS RB 23241
