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Did We Come to an Agreement?

Rule 69 of the Rules of Family Law Procedure generally govern whether parties have come to a binding agreement in a family law case. The Rule requires that in order for an agreement to be considered binding it must be either (1) in writing; or (2) set forth on the record before a judge or other legal authorized person; or (3) audio recorded by a mediator or settlement conference officer. The rule doesn't require that the written agreement be signed, although many attorneys do not consider an agreement to be finalized until both parties have signed it. Otherwise, written agreements may just be settlement negotiations passed between the parties and not admissible in court.

The Court of Appeals (Div. 1) may have redefined some of these assumptions this year in Murray v. Murray. In Murray the parents shared nearly equal parenting time. However, in less than one year after they agreed to this parenting time, Mother proposed to move out of state with the children. Father opposed this move, both because it was within one year of their previous agreement and because it would substantially change Father's parenting time. During the litigation process Mother and Father exchanged emails, attempting to come to a settlement. At some point some very detailed agreements that would allow Mother to move the children out of state were put on paper, but never reduced to a final agreement and signed.

The matter was then heard by the court. The trial court found that Mother's request to move out of state was not appropriate because it was within the one year time period and additionally that the court would not consider the email agreement as an agreement. On appeal, however, the Court of Appeals determined that the agreement may have met the requirements of Rule 69 and the could be considered by the court. While the Court of Appeals upheld the trial court's decision regarding the timeliness of the request to move, in the end, the trial court could find that Father made an agreement to allow the move despite the time problem.

So what to do to make sure your negotiations aren't seen as agreements? Always include a line in the email stating that the email is strictly for settlement purposes and that the agreement isn't final until both parties have signed on the dotted line.

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West, Longenbaugh and Zickerman P.L.L.C.

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