I declined a listing yesterday.
t wasn’t because I was too busy, and it wasn’t a conflict of interest. Of all the reasons a CDRE might turn down a divorce listing, the one I run into most often is this: I don’t believe the sale has a real chance of closing, and nine times out of ten, that comes down to one party being uncooperative.
Why “low probability of success” makes me decline
Taking a listing I don’t believe will actually sell doesn’t help anyone. It burns time, it burns the equity both parties are counting on, and it puts me in the position of representing a transaction I already suspect is headed for a stalled listing or multiple return trips to family court. Some of the patterns that lead me there:
Access problems
One spouse controls the property and won’t allow reasonable showings, won’t accommodate a lockbox, or makes buyers’ agents jump through hoops that quietly kill interest.
Refusal to cooperate on condition and disclosures
A party who won’t allow reasonable repairs, staging, or even basic cleanup, or who won’t sign or contribute to required disclosures, can make a property effectively unmarketable.
Pricing sabotage
One party insists on an unrealistic price, refuses to agree to reductions even after the property sits, or undermines the listing by telling buyers or agents the sale “isn’t really happening.”
Passive noncompliance
No one is dramatically blocking the sale, but showings get “rescheduled,” paperwork gets “misplaced,” and the listing slowly dies from a thousand small delays.
Weaponizing the process itself
In the highest-conflict cases, one party uses every step of the process – listing, offers, inspection requests, repair negotiations, execution of documents required by escrow – as a new front in the divorce dispute rather than a business transaction to complete.
I look for signs of these patterns before I sign the listing agreement, and I decline or I ask that the order be revisited first. It’s not that I don’t want the business. It’s that I don’t want to set a client, or their attorney, up for a listing that goes nowhere.
Where your drafting comes in
The good news is that most of this is preventable at the drafting stage. Orders that anticipate non-cooperation tend to produce listings that actually close. A few provisions I regularly see work well:
Sole listing authority
Give one party (or a neutral) authority to make routine listing decisions, price reductions, offer response deadlines, so the sale isn’t hostage to unanimous agreement on every point, or provide that in the event of a deadlock, one party will have the authority to make the decision.
Automatic price reduction schedule
Build in agreed reductions if the property hasn’t sold within a set number of days, removing the need for renewed consent from a reluctant party. (I don’t favor this, since it may not reflect market activity, but sometimes it’s the only way to get the job done.)
Deemed consent / signature provisions
Language stating that if a party fails to sign closing or listing documents within a specified number of days of request, the other party or a designated third party (or the court) may sign on their behalf.
Defined access obligations with consequences
Require reasonable access for photos, showings and inspections, and attach a real consequence (change in marital property distribution percentages or a return to court on shortened notice) for noncompliance.
Tie-breaker or special master provisions
Where the parties disagree on an offer, repair request, or price adjustment, name one party or a neutral third party, with authority to break the deadlock rather than routing every disagreement back through both attorneys.
Explicit agent authority and protection
Confirm the agent’s authority to act on standard matters without additional consent from either party, and make clear the agent isn’t required to continue if a party’s conduct makes the listing unworkable, that protects both the agent and the transaction.
Sanctions built in up front
Rather than requiring a fresh motion every time a party drags their feet, some orders include pre-authorized remedies (attorney’s fees, reallocation of costs, or authority for the other party to act unilaterally) triggered automatically by defined noncompliance.
Good provisions still need a committed attorney
Even the best-drafted order only works if someone is willing to enforce it. I’ve seen well-drafted access and consent provisions sit unused because no one followed up when the noncompliance actually started, and by the time anyone acted, the listing had already lost momentum, or the buyer had walked. A provision that exists on paper but never gets invoked isn’t a workaround, it’s just a longer version of the same problem.
That’s where I need you. When I flag noncompliance early, whether it’s a missed showing window, a signature that hasn’t come in, or a party undermining the price, I need to know the attorney on that file will actually pick up the tie-breaker provision, the deemed-consent clause, or the sanctions language and use it. That might mean a quick letter to opposing counsel, a same-day call to the client, or a motion on shortened time. What it can’t mean is treating the provision as a formality that only matters if things get bad enough to justify the effort.
If you draft these protections into the order, I’d ask that you also commit, up front, to being responsive when I raise a compliance issue. A short conversation early in a stalled listing is almost always cheaper, for your client and for the case, than the motion that becomes necessary six weeks later.
The takeaway
If a seller has already shown you they’re going to be difficult about the house, that’s the moment to build in the workarounds, not after the agent has already walked away from an unworkable order. A little extra drafting time up front, paired with a genuine commitment to enforce what you’ve drafted, tends to save everyone a second trip to court.
As always, I am happy to talk through specific language or a particular case if it would help.
This newsletter is provided for general informational purposes only and does not constitute legal advice. Reading or responding to this newsletter does not create an attorney-client relationship between the author and any reader. Every case is different, and readers should consult with their own legal counsel regarding their specific circumstances before relying on any information contained here.
Judy S. Howard, CDRE, R(B) 23241|COMPASS 23206
