The Lawletter Vol 44 No 4
One of the most common formalities required for family law agreements is that they must be in writing. At common law, premarital agreements were within the statute of frauds. The Uniform Premarital Agreements Act ("UPAA") requires that premarital agreement be both written and signed by both spouses. UPAA §§ 2, 5. Many states, by case law or statute, likewise require that divorce settlement agreements be written. Amendments to family law agreements must also often be written.
A generation ago, a writing requirement was easy to construe—the text of the agreement had to appear on paper. But in the 21st century, the world is increasingly paperless. It seems quite likely that the world of family law agreements will join the movement away from paper. Most states have adopted the Uniform Electronic Transactions Act ("UETA"), which provides:
(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic record satisfies the law.
(d) If a law requires a signature, an electronic signature satisfies the law.
UETA § 7.
If a family law agreement is recorded electronically and for this reason alone is deemed unenforceable, the result would appear to violate UETA § 7(b). Likewise, under UETA § 7(d), an electronic signature has the same effect as a paper signature.
An "electronic record" is defined as "a record created, generated, sent, communicated, received, or stored by electronic means." Id. § 2(7). Both email and text messages would seem to qualify.
An "electronic signature" is defined as "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record." Id. § 2(8). A traditional signature block at the bottom of an email would seem to qualify. Indeed, a simple first name typed at the end of a text message might qualify, as there has never been any requirement that a signature must include a person's full name. Salmon Falls Mfg. Co. v. Goddard, 55 U.S. 446, 448 (1852) ("It is well established that a signature, by initials, is good."); Great W. Printing Co. v. Belcher, 127 Mo. App. 133, 104 S.W. 894, 895 (1907) (writing of last name alone was a signature). "[A] signatory to a writing can, with the requisite intent, adopt any mark or sign as his own signature." Koo v. Robert Koo Wine & Liquor, Inc., 170 A.D.2d 360, 361, 566 N.Y.S.2d 63, 64 (1991).
There is also no requirement that a contract must consist of a single document. See, e.g., Rowland Lumber Co. v. Ross, 100 Va. 275, 277, 40 S.E. 922, 923 (1902) (finding that a series of letters constituted a written contract). In the 21st Century, it seems quite possible that a series of email or text messages might constitute a contract, and that, if each party signed at least one of the messages, the messages might together constitute a signed writing.
One particularly fertile field for dispute over an electronic writing is modifications. Many agreements provide that they can be modified only in writing. The UPAA expressly requires that modifications to a premarital agreement be both written and signed. If a modification is made in a series of email or text messages, and both parties type their names at the bottom of at least one message, the messages together might constitute a signed written modification agreement.
Case law has not yet begun to explore the interaction between family law writing requirements and statutes regarding electronic writings, but it is certainly no longer safe to assume that all writings must appear on paper.