Listing Agreement: Names When Sellers Are Divorcing or Deed Doesn't Match
Listing Agreement: Names When Sellers Are Divorcing or Deed Doesn't Match
Two related situations that require extra attention before you execute a listing agreement.
Scenario 1: Divorcing Sellers
Who needs to sign the listing agreement?
All parties on the deed must sign the listing agreement — even if they're separated or in the middle of divorce proceedings. One spouse cannot sign for both.
If there's a court order involved:
A divorce decree or court order may authorize one party to sell the property unilaterally. Get a copy and review it before proceeding. Forward it to your title company contact immediately — title will need to underwrite the chain of authority.
If there's no court order yet:
Both spouses must sign the listing agreement and ultimately the sales contract. If they're not cooperating, that's a problem to resolve before you take the listing — not after you're under contract.
Practical considerations:
- Communicate with both parties equally — don't let one spouse position you as "their" agent
- Keep all communications in writing
- If there's significant conflict, recommend they each consult an attorney before signing anything
- Know that a contentious divorce situation can stall or kill a deal at any stage
Scenario 2: Note and Deed Names Don't Match
This comes up when the person trying to sell is not the same as (or not all of) the people on the recorded deed.
Common causes:
- A party died and title was not updated
- Property was transferred informally without a recorded deed
- Buyer purchased with one name and is now selling under a married/changed name
- LLC or trust ownership is unclear
What to do:
- Pull the current deed before executing the listing agreement — confirm exactly who holds title
- The listing agreement parties must match the deed exactly
- If there's a name discrepancy (e.g., seller married and changed their name), they'll need to provide legal documentation of the name change to title
- If someone has died, the estate likely needs to go through probate before the property can sell — or the surviving joint tenant holds title automatically if it was held as joint tenancy with right of survivorship. Get title involved immediately.
Do not list a property where title is clearly clouded without getting title involved first. You cannot sell what you cannot convey.
Quick Reference
| Situation | Action |
|---|---|
| Divorcing couple, no court order | Both must sign |
| Court order authorizing one party to sell | Get copy, send to title, proceed carefully |
| Name mismatch (marriage/legal change) | Documentation of name change required at closing |
| Deceased party on deed | Stop and involve title/attorney before listing |
| LLC ownership | See How to Sign a Contract as an LLC |