- Can an exchange of emails be an enforceable agreement in family court?
Facts and Procedural History
The parties’ attorneys exchanged emails about a possible settlement. After extended communication, Husband’s attorney emailed Wife’s attorney that Husband and Wife “were in full and final agreement” regarding their divorce.
When Husband’s attorney presented the written agreement to Wife’s attorney, Wife’s attorney withdrew from the case. Wife refused to sign the written agreement unless Husband paid her an additional $250,000.
The trial court found that a binding agreement existed and enforced the agreement contained in the exchange of emails between the attorneys.
Sue Ertl appealed the family court’s order finding that she entered a valid separation agreement when the parties’ respective attorneys agreed to the terms through signed emails.
Ruling
Arizona recognizes that parties may enter into a binding separation agreement disposing of their property. See A.R.S. § 25–317. An enforceable agreement requires “an offer, acceptance, consideration, a sufficiently specific statement of the parties’ obligations, and mutual assent.” Buckholtz v. Buckholtz, 246 Ariz. 126 (App. 2019).
These agreements are valid under Rule 69 of the Arizona Rules of Family Law Procedure if they are “in writing and signed by the parties personally or their counsel on the party’s behalf.” Under § 44-7007, a record and signature in electronic form “cannot be denied legal effect,” and applies to any transaction relating to government affairs. Signed email communications involving court proceedings involve the judicial branch and are therefore considered “in writing” under Rule 69.
Parties and their attorneys should be cautious in discussing settlement over email. An agreement does not have to be physically signed to be binding. It may be wise to include a disclaimer in your email footer that “this email is for discussion purposes only and does not constitute a signed written agreement for purposes of Rule 69.”
Ertl v. Ertl, 502 P.3d 466 (App. 2021).