Email Agreements are valid in an Arizona divorce because of Ertl v. Ertl
Ertl v. Ertl, 252 Ariz. 308 (App. 2021)
Who should be aware of the Ertl case law?
Anyone who discusses family law agreements via email or anyone who is wondering if an agreement reached via email, is considered valid in a family law case.
Key findings from the Ertl ruling:
- Under Rule 69 of the Arizona Rules of Family Law Procedure, an agreement made in writing and signed by the parties is a binding agreement.
- An electronic signature counts as a signature wherever any statute or rule requires a signature.
- When parties incorporate a prenup into a final Separation AgreementAn agreement made by a couple when they separate regarding how their affairs will be handled. A separation agreement that is put into writing will be upheld by the Court and incorporated into the Decree so long as it is not unfair. See A.R.S. § 25-317.Read more about Separation Agreement, the prenup’s distribution is deemed fair under A.R.S. § 25-317(B) unless the premarital agreement is unenforceable under A.R.S. § 25-202(C).
Legal Background: Binding Agreements
From statehood through 2005, family law proceedings in Arizona fell under the Civil Rules of Procedure. In the early 2000s, the Arizona Supreme Court believed it was necessary to create separate rules of procedure for the family court. In 2005, the Arizona Supreme Court approved the Arizona Rules of Family Law Procedure. These Rules first went into effect on January 1, 2006.
From its inception, one of the most important rules has been Rule 69, which governs what counts as a binding agreement. The rule was originally based on Rule 80 of the civil rules and originally only required that agreements be in writing.
In 2019, the Supreme Court appointed a committee of family law attorneys and judges to conduct a review of the Family Law Rules and recommend changes. As a result of that study, the Supreme Court made some significant changes. To Rule 69, the Supreme Court added the requirement that the Agreement also be signed. As it was explained by some of the committee members, the signature requirement was to avoid some of the confusion that came by the parties making agreements via email. If true, though, the committee did not write that into the rule nor include a comment explaining that rule. Whether the committee was aware of A.R.S. § 44-7007 is hard to say. But if the committee’s purpose was to prevent agreements by email, A.R.S.A.R.S. is an abbreviation for Arizona Revised Statutes. It is most commonly used as a reference. For example, if one types in, ARS 25-403 into Google or Bing, they'll likely be returned with links to Arizona's statute on the best interests factors and articles, web sites, and…Read more about A.R.S. § 44-7007, as applied here by the Court of AppealsThis is the Court that hears appeals and special actions from the decisions made by the superior court. A panel of three judges reviews each appeal and issues a ruling. The Arizona Supreme Court is the only state court higher than the Court of Appeals.Read more about Court of Appeals, frustrates that purpose.
Legal Background: Prenuptial Agreements and Separation Agreement
A Prenuptial AgreementAn agreement made between two people prior to the marriage that can determine how they will hold property during the marriage and determine how property will be divided and how spousal maintenance will be ordered in the event of a divorce. In other words, it allows spouses to opt…Read more about Prenuptial Agreement is an agreement made between two future spouses in contemplation of marriage. A separation agreement is an agreement made between two current spouses upon their separation. Although they sound like they may be subject to the same legal standards, the legal standards are starkly different.
For a prenuptial agreement to be valid, the parties must not only agree and reduce their agreement to writing and sign the agreement, but they must follow the correct procedure in reaching the Agreement. Specifically, they must make a full DisclosureFollowing Rule 49, this is when you provide documents, evidence, and information regarding your case to the other side. Any evidence you want to use must be disclosed to the other side. Disclosure is not filed with the court.Read more about Disclosure of the finances to the other PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party, and each party must either retain an attorney or have a chance to hire one. Additionally, the agreement must not be UnconscionableA standard by which a prenuptial or postnuptial agreement may be invalidated. An agreement is unconscionable if it is so unfair that it “shocks the conscience.” In other words, if the prenup is grossly unfair, a court may invalidate it. See A.R.S. § 25-202(B)(2).Read more about Unconscionable.
In contrast for a Separation AgreementAn agreement made by a couple when they separate regarding how their affairs will be handled. A separation agreement that is put into writing will be upheld by the Court and incorporated into the Decree so long as it is not unfair. See A.R.S. § 25-317.Read more about Separation Agreement to be valid, it should be in writing and signed, but the Court must only determine that it is fair.
Simply put: the standards for a separation agreement are much easier to meet than those for a Prenuptial AgreementAn agreement made between two people prior to the marriage that can determine how they will hold property during the marriage and determine how property will be divided and how spousal maintenance will be ordered in the event of a divorce. In other words, it allows spouses to opt…Read more about Prenuptial Agreement.
Ertl v Ertl Factual Background
This case reminds us of something that frequently happens in legal cases – the parties reach an agreement, and the next day, one of the parties has buyer’s remorse, and tries desperately to get out of it. In their desperation, accusations fly, and these can become very contentious situations.
We do not know that’s what happened here in Ertl v. Ertl—it’s unclear whether Wife approved the Agreement before her attorney signed off on it or found out after the fact what her attorney agreed to. But whatever the case may be, she tried her darnedest to undo the Agreement.
But let’s go back to the beginning: Husband, a dermatologist, met Wife while she worked as a nurse in his practice. They married and signed a prenup. The prenup stated neither PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party would receive spousal support, both parties’ earnings would be considered separate, and the community could not acquire an interest, equitable or otherwise, on any separately owned property.
The couple married in 2005. Wife left the workforce for 5-6 years to raise the couple’s twin daughters. Husband filed for divorce in 2020. Parties agreed Wife would be Primary Residential ParentIn cases where one parent is given more parenting time than the other, they are designated as the primary residential parent.Read more about Primary Residential Parent of the children (meaning they’d live with her primarily). Husband submitted the agreement to the Court.
Parties’ attorneys exchanged emails regarding the outstanding issues. They reached agreements and vacated Wife’s DepositionThis is where a party is able to ask the other party, another witness (with leave of court), or a court-appointed professional questions under oath. Depositions generally can last a maximum of four hours. The person requesting the deposition must provide and pay for the services…Read more about Deposition. The attorneys confirmed their agreement via email.
Wife’s attorney then withdrew. Wife denied there was an agreement. Wife contested just about everything, even prior agreements, unsuccessfully.
She appealed.
The Questions in Ertl v. Ertl
- Does an email signature satisfy the signature requirement in a Rule 69 Agreement?
- When a Separation Agreement incorporates the property division set forth in a Prenuptial Agreement, and a party later challenges the Agreement, what standard does the Court apply?
THE COURT OF APPEAL RULING
An electronic signature, including an email signature, counts as a signature under Rule 69 and for any other law or rule requiring a signature. Under A.R.S. § 44-7007(A), a signature in electronic form cannot be denied legal effect and enforceability simply because it’s in electronic form. See also A.R.S. § 44-7007(D) (providing that an electronic signature fulfills any law requiring a signature). The Court also found it complied with ARFLP Rule 68(c)(6)’s requirements for agreements signed by counsel.
The Court further found it met the basic requirements of a contract: An enforceable agreement requires “an offer, acceptance, ConsiderationWhat a party is required to give up under the terms of a contract. Both sides must have consideration in order for a contract to be valid and enforceable. For example, A and B agree that A will walk B’s dog for $10. A’s consideration is the $10 that A is giving; B’s consideration…Read more about Consideration, a sufficiently specific statement of the parties’ obligations, and mutual assent.” On this point, Wife argued essentially that her attorney’s email signature only evidences her attorney’s agreement, not Wife’s agreement. The Court of Appeals responded that attorneys’ signatures are binding under Rule 69. Wife had the burden to show that a Rule 69-compliant agreement was defective, and she presented no evidence to the TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial court that it was defective.
“When the parties incorporate a premarital agreement into a final separation agreement, distribution according to the premarital agreement is deemed fair under A.R.S.A.R.S. is an abbreviation for Arizona Revised Statutes. It is most commonly used as a reference. For example, if one types in, ARS 25-403 into Google or Bing, they'll likely be returned with links to Arizona's statute on the best interests factors and articles, web sites, and…Read more about A.R.S. § 25–317(B) unless the premarital agreement is unenforceable under A.R.S. § 25–202(C).” The Court of AppealsThis is the Court that hears appeals and special actions from the decisions made by the superior court. A panel of three judges reviews each appeal and issues a ruling. The Arizona Supreme Court is the only state court higher than the Court of Appeals.Read more about Court of Appeals felt Wife was seeking to impose the lesser standard of a separation agreement to the prenuptial agreement. To do so would disrupt the statutory standards and allow a backdoor for people to get to a lesser standard for Prenuptial AgreementsPrenuptial agreements have an undeserved reputation. Prenups don’t condemn a marriage, they protect it. A prenup is no different than insurance. If something catastrophic happens, you’re covered. You have one, but never expect to need it. And if you do need it, you will be glad…Read more about Prenuptial Agreements. The parties presented the separation agreement to the Court; thus, there was no factual dispute before the Court requiring a hearing.
OTHER NOTES ABOUT ERTL
The Court of Appeals’ OpinionThis is a ruling by the Court of Appeals that resolves the case and creates case law that other courts must follow in similar circumstances.Read more about Opinion also notes the legal standards for two other issues:
- When a Separation Agreement includes a custody provision. The Court reviews the agreement regarding custody for reasonableness.
- When a contract includes a UnilateralIn a joint legal decision-making or coequal custody situation, one parent acts unilaterally when they make decisions without an agreement from the other parent.Read more about Unilateral mistake. To escape a contractual obligation because of a unilateral mistake of fact, a party must have made a mistake of fact about a MaterialAs defined by Black’s Law Dictionary, “Having some logical connection with the consequential facts.” (Black’s 11th Ed., 2019). In essence, evidence or facts are material if, when proven or disproven, the outcome of the case may be affected. See Material Evidence, Material Fact…Read more about Material and basic assumption of an agreement, and the other party knew of the mistake of fact and unfairly exploited the other party’s error.
RELATED CASES
Murray v. Murray, 239 Ariz. 174 (App. 2016). Emailed communications between the parties may be used as evidence to show a Rule 69 AgreementRule 69 Agreement – Under Rule 69 of the Arizona Rules of Family Procedure, an agreement is binding on the parties if it is in writing and signed by both parties. An email signature counts as a signature for purposes of this rule. An agreement becomes binding on the Court as well…Read more about Rule 69 Agreement.
Buckholtz v. Buckholtz, 246 Ariz. 126 (App. 2019). When considering whether a separation agreement is fair, the court must look at what the parties had at the time the agreement was entered. Additionally, the Court may consider each party’s Sole and Separate PropertyProperty that belongs 100% to one spouse and is not part of the community property. Most commonly, this is property the spouse brought into the marriage.Read more about Sole and Separate Property in determining whether the agreement is fair. … When looking to determine whether both parties mutually assented (i.e., both parties agreed to the terms of the agreement), the Court must look at objective evidence, not the subjective intent of the parties.
Bailey v. Bailey, 412 P.2d 480 (App. 1966). This case notes that the parties’ agreements regarding custody, while not binding on the courts, a Court will “seldom” differs from the agreement because Courts recognize the value in bringing an end to litigation.
