The settlement in the Sitzer-Burnett class action against the National Association of Realtors, given preliminary court approval in April 2024 and implemented effective mid-July 2024, has substantially restructured how residential real estate commissions are determined, disclosed, and paid in the United States. The change affects every home transaction and is particularly consequential for divorcing households, who are typically buying or selling real estate during a window when their financial reserves are limited, their credit profiles are temporarily fragile, and their decision-making bandwidth is stretched. The Divorce Financial Coach or family lawyer who has not updated their understanding of how residential commissions now work is advising clients in a market that no longer exists.
What follows is a working brief on the NAR settlement and its specific implications for divorce real estate. It covers what changed in the Sitzer-Burnett settlement, the unintended consequences that disadvantage financially constrained buyers (including most divorcing spouses), the buyer-agency-agreement requirements and what they cost in practice, the steering and discrimination risks the new structure introduces, the fair-housing exposure, and the operational adjustments that the divorce-property-settlement workflow has to incorporate.
What the Sitzer-Burnett settlement actually changed.
The Sitzer-Burnett class action, filed against the National Association of Realtors and several major brokerages, produced a $4.7 billion jury verdict in fall 2023. The plaintiffs claimed that the standard real estate commission structure — typically a five to six percent total commission split between the listing agent and the buyer agent — was anticompetitive, that buyer agent commissions were inflated by the system, and that NAR’s Code of Ethics and MLS Handbook produced the structural conditions for the inflation. NAR reached a settlement in March 2024 in response to the verdict and to avoid further litigation in related cases.
Three terms in the settlement most directly affect how transactions are structured going forward.
Buyer agent commission (BAC) is removed from the Multiple Listing Service. Historically, the MLS listing for a property included an explicit offer of buyer-agent compensation from the seller — typically two to three percent of the sale price. The buyer’s agent could see what they would be paid before showing the property. Under the settlement, BAC offers cannot appear on the MLS, although sellers can still offer BAC outside the MLS through other channels.
Mandatory buyer agency agreements are required before a buyer’s agent shows any property. The buyer and the buyer agent must execute a written agreement specifying the agent’s representation and the commission the buyer will owe. Historically, buyer agents typically operated without a formal agreement until the buyer was preparing to make an offer; the new rule requires the agreement upfront, before any property is shown.
Buyer agency agreements must specify the buyer agent commission as an ascertainable amount, capped at the amount specified. The commission can be flat-fee, hourly, percentage-of-sale, or some other structure, but the specific amount or formula must be in the agreement before the agent begins showing properties. The buyer cannot agree to pay whatever commission ends up customary; they must commit to a specific amount or structure upfront.
Buyers may pay BAC out of pocket if BAC is omitted by the seller. This is the central economic shift. Historically, the buyer agent’s commission was effectively paid by the seller, with the cost embedded in the price of the home. Under the new rules, the seller is no longer required to compensate the buyer agent, and many sellers may not. When the seller does not compensate the buyer agent, the buyer must pay the buyer agent commission directly, in addition to the down payment and closing costs that the buyer is already responsible for.
Why divorcing buyers are disproportionately disadvantaged.
The structural shift falls hardest on buyers who already face financial constraints — first-time buyers, VA-loan borrowers, borrowers with high debt-to-income ratios due to student loans or other obligations, borrowers with lower credit scores, and borrowers whose income has recently dropped. Divorcing spouses fit several of these categories simultaneously.
Income reduction. Divorce typically produces meaningful income reduction for both spouses. The household that previously operated on two incomes is now two households, often on single incomes or on combinations of single income plus support. The 2024 February article from the Federal Reserve Bank of St. Louis noted that the income reduction may affect men more than women in many cases, though both spouses typically experience some reduction in available cash flow.
Lower credit scores. The divorce period frequently damages credit scores through missed payments on joint accounts, increased credit utilization to fund separation costs, and the hard inquiries from refinance and new-credit applications during the period (covered in detail in the credit-protection piece). The lower scores produce higher mortgage rates and tighter underwriting, which compound the financial constraints.
Smaller financial reserves. Most divorces consume cash from both spouses’ reserves through legal fees, separation costs, the equalization payment, and the cost of setting up a new household. The reserves available for a home purchase down payment are typically smaller than they were before the divorce, often by a substantial margin.
The combined effect: a divorcing buyer is trying to buy a home with less income, lower credit, and smaller reserves than they had before the divorce. Adding the requirement to pay BAC out of pocket — typically two to three percent of the purchase price, or $7,000 to $15,000 on a typical home — can push the buyer below the threshold of being able to complete the transaction at all.
The structural workarounds — financing the BAC into the mortgage, having the seller offer BAC at closing, having the buyer abandon buyer-agent representation — each carry trade-offs. Financing BAC into the mortgage requires both the lender to allow it (rules vary by program) and the seller to accept a slightly lower net price (because the buyer has to be able to bring less to closing). Having the seller offer BAC is possible but is no longer the default; many sellers will not. Abandoning buyer-agent representation saves the commission but costs the buyer the professional advocacy and negotiating support that the buyer agent provides, often at a net financial cost greater than the saved commission.
The unintended steering and discrimination risks.
The new structure introduces three distinct risks that practitioners advising divorce buyers should be alert to.
Unfair housing from inconsistent BAC offers by sellers. The federal Fair Housing Act prohibits preference and discrimination in housing-related activities for protected classes including race, color, national origin, sex (including gender identity and sexual orientation), familial status, and disability. When sellers can choose whether to offer BAC, and at what amount, the choice itself becomes a potential vector for discrimination. A seller who offers BAC on listings shown to certain demographic groups but not others is engaging in conduct that may violate fair housing protections, even when the discrimination is not explicit.
Inverted steering. The historical concern about steering — agents steering clients toward or away from certain neighborhoods or properties based on the client’s demographic characteristics — has been a fair-housing concern for decades. The new structure produces an inverse version: financially disadvantaged buyers who cannot pay BAC out of pocket may only consider listings where the seller is offering BAC, which effectively reinstates the prior commission structure for that segment of buyers. The pattern produces steering away from listings that do not offer BAC, which can correlate with protected demographic characteristics depending on local market patterns.
Collusion and price fixing. Listing agents who encourage sellers to offer BAC in a specific percentage may be participating in price-fixing behavior that the settlement was specifically intended to prevent. The line between legitimate guidance (informing sellers about the practical realities of how the local market is currently working) and collusion (encouraging sellers to coordinate on a specific BAC level) is sometimes thin, and agents who push it produce legal exposure for themselves and for their brokerages. Boycotting — agents declining to show listings that do not offer BAC, regardless of whether the listings would otherwise meet the buyer’s criteria — is similarly anti-competitive and carries its own legal exposure.
The mortgage finance treatment.
The federally-backed mortgage agencies have addressed how the new BAC arrangements interact with mortgage finance. FANNIE MAE, FREDDIE MAC, and the FHA confirmed in 2024 that conventional and government-backed mortgages can continue to be issued normally when sellers choose to pay BAC at closing. The seller-paid BAC is treated for underwriting purposes essentially as it was before the settlement.
When the buyer pays BAC out of pocket, the treatment varies by program. Some programs allow the buyer to roll BAC into the mortgage as a closing cost; others do not. Some allow seller concessions to cover BAC up to a cap; others have stricter limits on what the seller can contribute. The Divorce Financial Coach or CDLP advising a divorcing buyer in 2024 and 2025 needs to know which programs the buyer is qualifying under and how each treats BAC, because the treatment can affect whether the transaction is feasible at all.
Divorcing homeowners whose property settlement agreements were finalized before the NAR settlement may also face downstream complications. Settlement agreements that anticipated specific net proceeds from a home sale based on the historical commission structure may produce different actual net proceeds under the new structure. Where the difference is meaningful and one spouse is disadvantaged, modification or supplemental agreement provisions may be necessary.
Operational adjustments for divorce property settlements.
Five operational adjustments incorporate the post-settlement environment into the divorce property settlement workflow.
First, build BAC into the cost projections for any divorce-period real estate transaction. The historical model where commission was a single line item embedded in the seller’s net is no longer accurate. The current model requires explicit treatment of the seller’s BAC offer (if any), the buyer’s BAC obligation (if any), and how each side will fund their portion. For a divorcing client who will be buying a new home post-divorce, the BAC needs to be in the cash-required projection alongside down payment and closing costs.
Second, include buyer agency agreement timing in the post-divorce transition plan. The buyer cannot view properties without a signed agreement. The divorcing client who is planning to buy after the divorce closes needs to identify their buyer agent and sign the agreement before they can begin actively house-hunting. Building this into the post-decree timeline prevents the delay of having to assemble the buyer-agent relationship from scratch after the client wants to begin looking.
Third, evaluate the trade-off between buyer-agent representation and BAC cost. For some divorcing buyers, the savings from going unrepresented may be illusory — the buyer agent’s negotiating support, market knowledge, and process expertise typically produce more savings than the commission costs. For other buyers, the financial constraint may make unrepresented buying the only option. The analysis should be explicit, not defaulted.
Fourth, revisit pre-settlement decrees that anticipated specific commission structures. A 2023 decree that assumed historical commission flow may produce a different actual outcome under the post-settlement structure. Where the difference is material, the affected party may need to seek modification or the parties may negotiate a supplement to address the gap.
Fifth, work with real-estate professionals who understand the post-settlement environment specifically. Real estate agents and Certified Divorce Real Estate Experts (CDREs) who have absorbed the new rules and adjusted their practice can guide divorcing clients through the changes without producing additional friction. Agents who are still operating under the prior structure are not the right resource for a divorcing client in 2024 or 2025.
What Divorce Financial Coaches and CFPs specializing in divorce can do.
The settlement and its aftermath have produced significant disruption to the real estate industry — and significant opportunity for financial professionals who specialize in divorce to expand their role and value to divorce lawyers and divorcing clients. Housing and real-property-related contingencies, asset comparisons, and tax consequences have become more complicated for divorce property settlement agreements, and the demand for specialized expertise in these areas has grown correspondingly.
The opportunity for Divorce Financial Coaches is to position themselves as the financial-side resource for divorce-period real estate decisions in the new environment. The role goes beyond traditional financial analysis — it includes understanding the commission structure changes, the buyer-agency requirements, the underwriting implications of BAC funding, the steering and discrimination risks, and the ways the new structure interacts with existing divorce decrees and pending settlements. The Divorce Financial Coach who develops this expertise becomes a higher-value resource to divorce attorneys and a more relevant resource to divorce clients than the Divorce Financial Coach who treats real estate as someone else’s domain.
The expertise development requires investment. The structural changes are not yet fully settled — the Department of Justice’s separate investigation of NAR continues, additional class action settlements are pending, and state regulators are weighing in differently across jurisdictions. The practitioner who positions themselves as a resource in this area needs to commit to ongoing education to maintain currency. The investment compounds because the area is one where competent expertise is scarce.
How VennBoard supports real-estate-aware divorce work.
Real estate decisions are typically the highest-dollar individual decisions in a divorce property settlement, and the post-settlement environment has made the decisions more complex. The Divorce Financial Coach workspace that supports real estate analysis needs to handle the additional complexity — the buyer-agency agreement, the BAC funding decision, the seller-side commission offer (if any), the mortgage program selection, the affordability analysis incorporating all of the above.
VennBoard’s built-in calculators support the analysis with current treatment of buyer agency commissions, seller concessions, and program-specific underwriting rules. The model produces both pre-settlement and post-settlement scenarios so the client and the team can see the impact of the new structure on the specific transaction being analyzed.
Document management is where the value compounds across the engagement. The buyer agency agreement, the mortgage pre-qualification, the appraisal, the title work, the CLUE report, and the eventual closing statement all live in the matter workspace alongside the financial analysis. When the post-decree real estate transition is underway, the working file is intact and accessible rather than scattered across email threads. The closing dollar flow can be reconciled against the pre-decree projections, with any discrepancies surfaced explicitly.
Two additional features matter beyond document management. The audio and video transcribe tool captures conversations with the buyer agent, the lender, the appraiser, and the title company, which becomes valuable when later disputes turn on what was represented during the transaction process. And the modern billing layer with Stripe Connect and PayPal Commerce payment links integrates invoicing across the team — the Divorce Financial Coach, the family lawyer, the real estate agent or CDRE, the mortgage professional — on a single payment workflow that scales with the higher complexity of the post-settlement environment.
The post-settlement real estate environment is a place where divorcing clients especially need professional guidance and where competent Divorce Financial Coaches can provide disproportionate value. VennBoard exists to support the kind of integrated, real-estate-aware divorce work the new environment requires. Professional walkthrough at VennBoard.com, product detail at VennBoard.com.