“I’m Not Selling!” You may actually decide to sell your property without the consent of your spouse. Some real estate agents will even take your listing on this basis, requiring only one signature on the agreement.
But when it comes time to accept an offer, you’ll need signatures from everyone whose name appears on the grant deed. If that includes a spouse who refuses to sign off on the sale, the transaction cannot close. This is why I won’t take a listing in a family law case with only one signature when both spouses are on title, unless there are extenuating circumstances. And I don’t advise anyone to do so; it’s a setup for disappointment.
If one party refuses to sign a listing agreement, that’s an indication that they’re not cooperating generally. And it’s wishful thinking to imagine that they’ll become more agreeable as time goes by. If they’re not cooperative at the beginning, they aren’t likely to be at the end. Actually, they have less incentive then; knowing that the sale can’t close without their consent, they’re suddenly in a position of power. In these cases, the worst possible scenario would be to go through the time and effort of marketing the house, and then receive a viable offer—only to find out that it’s impossible to complete the sale.
This underscores how important it is to find out early whose names are on the various documents pertaining to the house. As we’ve pointed out, many homeowners think they know, or at least have a vague idea. But when they examine the actual paperwork they’re sometimes surprised. There are so many documents involved in a real estate transaction that it can be hard to keep track of them all. Beyond those connected with the sale itself, there is the note, or loan agreement; the mortgage, or trust deed offering the house as collateral, and the grant deed, which identifies the owner(s). If your name is the only one that appears on the grant deed, you have the right to solely transfer title through a sale—unless the court takes control of the community assets. If your spouse’s name is there too, you can’t transfer title without the other partner’s signature.
Of course, all of that changes when the court steps in. When a judge makes the decision, it may or may not go the way you had hoped. But at least your ex won’t be able throw a wrench in the works without incurring the wrath of the court.