Rule 69 Agreements in Family Law Cases
Why is Rule 69 important?
Among all the family law rules, none may be as important as Rule 69. This rule determines which agreements are valid and binding, and which are not. It also creates the procedure for challenging an agreement, and the potential consequence for a failed challenge.
As most family law cases settle, and as most parties, therefore, enter into a written agreement, and as many individuals may experience “buyer’s remorse” and want to change their agreement, Rule 69 often plays an especially important function in family law cases.
What is a Rule 69 Agreement?
A Rule 69 Agreement is a binding understanding on an aspect of a divorce, child custody, or child support matter. Rule 69 of the Arizona Family Law Procedures defines what makes an agreement binding.
What makes an agreement binding?
For an agreement to be binding, it must meet one of the following criteria: (1) in writing and signed by both parties or their counsel, (2) on the record, or (3) by audio recording before a mediator or court-appointed settlement conference officer. Of these, the first option is, of course, the most prevalent, and the one that is preferred.
What falls under Rule 69?
Rule 69 is meant to govern any matter or case under Title 25 of the Arizona Revised Statutes. See ARFLP Rule 1(a) (“These rules govern procedures in family law cases and all matters arising under Title 25 of the Arizona Revised Statutes”). This includes divorce, custody, child support, legal separation, modifications of support or custody, third-party placement, or visitation, etc. It does not include Orders of Protection, which fall under Title 13, and it does not include dependencies, adoptions, guardianships, or DCS matters, as those fall under Title 8 and are handled by the juvenile court.
What counts as an Agreement?
This may seem like a simple question, but it is a legal question, and that means we need a legal definition. Across all types of law, the law long defined an agreement as occurring where there’s “an offer, acceptance, consideration, a sufficiently specific statement of the parties’ obligations, and mutual assent.” Ertl v. Ertl, 252 Ariz. 308, 312, ¶ 12 (App. 2021).
- An offer and acceptance are self-explanatory, but what is meant by consideration? Consideration, in its simplest terms, is each party gives something up. For example, if you and I agree that you will pay me $10.00 to mow your lawn, you have agreed to give up $10.00, and I have agreed to give up my services in mowing the lawn. In other words, your consideration is the $10.00, mine is the service I will perform.
What is a sufficiently specific statement of the parties’ obligations?
This means it needs to be clear what each party is required to do under the Agreement.
What is mutual assent?
This means the two parties have both indicated that they agree to the terms. It is the “meeting of the minds.” It also prevents this situation: Spouse 1 offers to buy Spouse 2 out of the house for $200,000.00. Spouse 2 never responds, and Spouse 1 withdraws the offer. Three months later, after housing prices plummet, Spouse 2 writes Spouse 1 that they will accept the $200,000.00. Because the offer was withdrawn before it was accepted, there was no mutual assent; therefore, an agreement was not reached. One Arizona case, Ames v. Ames, 239 Ariz. 246 (App. 2016) demonstrates the importance of mutual assent. In that case, Wife missed the deadline for filing to enforce spousal maintenance. She claimed the parties had agreed in writing to extend it. To prove it, she offered emails her former husband had sent. But the emails stated only that he was sorry he was late with a payment or asked her to confirm if she had received the $500 he had sent. Nothing in the email chain gave any indication that he agreed to extend enforcement. The Court of Appeals thus found there was no mutual assent.
What does not count as an Agreement under Rule 69?
Rule 69 announces three ways that an agreement can be reached. That means all other ways are not binding and are not permitted. Let us talk about a few common agreements people try to get the Court to accept:
- A “Handshake Agreement” or Oral Agreement. That is not going to fly in court. As I once heard Judge Judy say to a litigant, “If you want to enforce a Handshake Agreement, go to Handshake Court.” The purpose of Rule 69 is to ensure that agreements are recorded, so there is no guesswork as to whether an agreement is reached.
- An Agreement made via text message. Unless each party has signed their text messages (which is very unlikely), this is not going to fly.
Rule 69 Agreements Three Most Common
Number One: In Writing and Signed by Parties or Counsel
Of the three ways one can make an agreement, this one is not only the most prevalent, but also the most practical as well. The other two ways involve recordings that can sometimes be hard to track down and sometimes can be open to interpretation. For example, for an agreement made on the record in Court, you need to contact the Court to order a CD, you need to download the right app for it (and the one Maricopa County uses is, to put it kindly as possible, not at all user friendly). And to be useful in a subsequent hearing, you are most likely going to need to pay to have it transcribed.
A signed writing, though, is almost always good to go. Most people know where to find either physically or electronically, and if you must go through the Courts to get a copy, it is much easier than getting a CD. It is a much easier form of agreement.
Here is what you should be aware of:
- What counts as ‘writing’? This has not been defined. Obviously, an agreement typed up and printed counts, as does a handwritten agreement. Email counts too. Text message presumably would meet the bill as well. What about an agreement that is typed and sent through a program like Docusign or Adobe sign? Yes, those will count as well.
- What counts as a ‘signature’? A physical or electronic signature counts as an official signature. Does that include an email signature? That was the issue in Ertl v. Ertl, 252 Ariz. 308 (App. 2021). The answer: “Signed e-mail communications involving court proceedings involve this state’s judicial branch of government affairs and therefore are considered in writing under Rule 69. Id. at 313 ¶ 13. And an email signature just needs to be a person writing their name at the end of an email. Electronic signatures commonly also include those made via DocuSign or Adobe sign or similar programs, as well as people who write their name after a slash, the letter s, and another slash, i.e., /s/ John Hancock.
- Am I bound by what my lawyer agrees to? Yes, you are. A Rule 69 agreement can be entered into by just the lawyers exchanging emails. This is why the lawyer you pick makes such a difference. Good lawyers are conscientious about what they are sending the other side in emails. Further, good lawyers send proposals and counterproposals to their client for the client’s review and approval before sending it to the other side and will often require their clients confirm back in writing whether they want the lawyer to do. These are added layers to protect you and make sure you are on the same page before an offer is sent out or before an offer from the other side is accepted or rejected.
Number Two: Stated on the record
Under this provision, “the agreement’s terms are stated on the record before a judge, commissioner, judge pro tempore, or certified reporter.” Be aware, though, even when stated on the record, judges will want that agreement reduced to writing and signed. The preference is always for writings.
What does on the record mean? It means that the agreement is stated on a court record. Most commonly, it means that this is done in open court in front of a judge. But it can also be done in a deposition. That is what happened in Gonzalez-Gunter v. Gunter, 249 Ariz. 489 (App. 2020) where the father agreed to pay certain expenses for the children at his deposition. The trial court found his statements were sufficient to create a Rule 69 Agreement, and the Court of Appeals affirmed. Id. at ¶ 18.
What is the difference among a “judge, commissioner, judge pro tempore, or a certified reporter?” Of these, the judge is the highest-ranking, most versatile, and most important to your case. Almost every family law case is heard by a judge. The appointment of a judge is a more rigorous process than the rest. Judicial nominees are vetted by a non-partisan committee who then recommends a list of candidates to the governor; the governor then appoints a judge from those candidates. The difference between a commissioner. They are appointed the presiding judge to handle smaller cases, such as child support, defaults, and orders of protection. A judge pro tempore (JPT) is usually an attorney who occasionally performs judicial functions. In Maricopa County, JPT’s most commonly serve as mediators for Alternative Dispute Resolution conferences (i.e., court-required mediations). And a court reporter is the person who types up testimony as it is being given. (Did you know that the average Court reporter can type over 200 words per minute?)
Number Three: Audio Recording at Settlement Conference or Mediation
Here is an option that we do not recommend you use. If you reach an agreement at a settlement conference or mediation, put it in writing. Yes, you will be there an hour or two more. But it is worthwhile to have it reduced to writing and getting the language worked out without delay.
The History of Rule 69 Agreements
Understanding the development of the rule gives insight into how the rule functions today.
Rule 69 Before 2006
Prior to the Arizona Supreme Court’s adoption of the first set of Family Law Rules, all family law cases fell under the Arizona Rules of Civil Procedure. The forerunner of ARFLP Rule 69 was ARCP Rule 80(d). Rule 80(d), as it existed at the time, was much simpler than the Rule 69 that we have today. It read simply, “No agreement or consent between parties or attorneys in any matter is binding if disputed, unless it is in writing, or made orally in open court, and entered in the minutes.”
The 2006 Rule
The first set of Arizona Rules of Family Law Procedure went into effect January 1, 2006. The first rule was similar to the Rule 80(d), but it allowed agreements “made or confirmed on the record,” and confirmed that record be taken in front of a judge, a commission, a judge pro tempore, or a court reporter.
The first version of Rule 69 lasted five years. The 2011 amendment added a third way an agreement could be made: The parties could enter an agreement via audio recording before a mediator or court-appointed settlement conference officer.
The 2011 Rule
The 2011 amendment’s biggest change was in the procedure it created for challenging a Rule 69 Agreement. First, it created a presumption that the agreement was “valid and binding.” Second, it placed the burden on the person challenging the agreement to show a “defect” in the agreement. Finally, it allowed the Court to award fees, if appropriate, against the party who challenged a Rule 69 Agreement.
The Current Rule
Neither the 2006 original rule nor the 2011 Amendment required the Agreement to be signed. This led to confusion in some cases, as emails and text messages were often being shown to demonstrate an agreement was reached. This was a big concern that was finally addressed in the most recent amendment that went into effect on January 1, 2019.
Under the 2019 Amendment, the agreement must be signed by both parties personally or by their attorneys.
The other major change was the Rule’s clarification that agreements are “binding on the parties” once signed, but not binding on the court until the Court approves the parties’ agreement.
Consult an attorney before entering a family law agreement.
Whenever I call a doctor’s office, the first thing I hear is a recording telling me that if I am calling with an emergency, hang up and dial 9-1-1.
If you are reading this, chances are you are thinking about entering an agreement. If you are thinking about entering into an agreement, and you have not yet spoken with an attorney, you most likely are experiencing an emergency of sorts. Not one that would you require to call 9-1-1, but one that requires you to call an attorney.
At least a few times each month, we get a panicked call from someone who did not take that critical step. We have seen that decision to sign something before meeting with an attorney cost people hundreds of thousands of dollars, even millions.
Whether it is with us or another firm, you should consult with an attorney before you enter into any agreement in your case. That is the best way to protect your interests.