Separation agreements are contracts between spouses who live apart and want to be legally separated or divorced. They address various financial and custody issues, including spousal and child support, parenting time, division of property and other issues. Since the parties may still be communicating with each other, a question can arise as to whether promises to pay money made in an email can modify the separation agreement and be enforced in court. Separation agreements are not ordinary contracts in that the signing requirements are different so unique rules apply.
What Are the Requirements for Executing a Separation Agreement?
Under New York law, both parties are required to sign a separation agreement. Signatures must be acknowledged by a Notary Public. The agreement is valid once notarized even if it isn’t filed with the court.
Are Email Communications Enforceable as Contracts?
Email communications are ubiquitous, especially among parents who are separated or divorced. Parents of minor children must continue to interact and cooperate on matters related to their children regardless of how they feel about each other. Email provides a way to do that in a more formal and detached way. However, there is a risk that someone may say things in an email that they wouldn’t in person or didn’t mean to be a contractual promise.
In a recent client matter, one parent indicated in an email that he would set up a 529 plan for their children funded by that parent’s bonuses. This promise was not in the couple’s separation agreement. When he failed to set up the 529 plan, the other parent attempted to enforce the promise as a modification of the separation agreement.
Email communications can establish a legally binding contract in some situations and thus, be deemed a valid amendment of a previous contract between two parties. They may even modify a separation agreement as it relates to parenting time. As a general rule, however, separation agreements are different. Since a separation agreement must be acknowledged to be valid, generally, it can only be modified by another writing that has been similarly signed and notarized. Since email communications aren’t notarized, in most instances, they won’t create an enforceable separation agreement.
How Can You Modify a Separation Agreement?
As noted, the parties would have to put the new terms in writing, with each of them signing the agreement before a Notary Public.
Ideally, the parties should go to the attorney who handled the initial agreement and any subsequent amendments. Any experienced matrimonial lawyer, however, can explain what rights and obligations each side has under the law and give guidance on what terms to include in the agreement. The lawyer can also draft the agreement to ensure its terms are accurate, complete and enforceable.
If you are considering legal separation or divorce, contact us to learn how we can help.
