Email Exchanges in Divorce Litigation Carry Immense Risk
Each and every day, when we step out of the front door, we take risks. Perhaps we are aware of them, and perhaps, we are not. If you read the newspaper, you are no doubt acutely aware of the risks that surround us in an increasingly precarious world.
As divorce lawyers, one of the risks we take hour by hour, minute by minute, involves the exchange of emails, whether with clients or our opposing counsel. It is essential that we monitor with exacting precision what we put in writing in the form of emails. That includes not only proofreading the text of our emails, but also the minutiae of triple-checking who is listed in the “To,” “Cc,” and “Bcc” fields, and what is written in the “Subject” field.
This author finds himself looking in the “Sent” folder multiple times after an email is sent, and then hours or even days later having flashbacks where I begin to second guess if I sent an email to all of the correct recipients. Why am I so obsessively compulsive about the emails that I send in my capacity as a divorce lawyer?
I can answer that question for you by directing your attention to the recent decision of the Supreme Court of the State of New York, County of Westchester, in J.G. v. L.G., 2024 NY Slip Op 50659(U) (Sup. Ct., Westchester Cty., June 3, 2024). If you have not yet read the decision, put your pencils down and please read it.
In J.G., the plaintiff-husband filed a motion requesting that certain emails between counsel be deemed a binding settlement agreement as to the issue of the disposition of the marital residence.
The plaintiff’s counsel submitted an affirmation stating that he received an email from defendant’s counsel “confirming that her client was in agreement with our offer which was in lockstep with our off the record conversations related to the value… The email also stated how the transfer taxes would be split between the parties and how long the plaintiff would have to remove the defendant’s name off the mortgage after execution of a stipulation…my office responded…in agreement with the terms as laid out by [defendant’s counsel].”
The defendant-wife’s counsel asserted that “no binding agreement exists” because the emails between counsel included the phrase ‘Without Prejudice: Not to be Used in Litigation’; there was no open court agreement and no signed agreement or Court Order; that the agreement was subject to written confirmation; and all material terms were not set forth”.
The decision cites to Section 2104 of the New York Civil Practice Law and Rules (CPLR), which provides that “An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” It goes on to cite various cases determining whether and to what extent email exchanges create binding agreements. However, having looked at each case cited, I cannot find any that are matrimonial cases.
So what, you ask? Well, the Court of Appeals has held that without a proper acknowledgment, a marital agreement is not enforceable. Section 236B(3) of the New York Domestic Relations Law, titled “Agreement of the parties,” provides, in part, as follows:
An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.
The decision explains that in the context of emails wherein the words “without prejudice” are used, “in determining if the e-mails evidence a binding agreement the courts have turned to the intent and mutual understanding ascertained from the clear language of the communications.”
In J.G., the court found as follows with respect to the email sent by defendant’s counsel:
[The email] is not a proposal, but rather a clear confirmation that Defendant will accept the proposed settlement [clearly initially provided by Plaintiff] setting forth Defendant’s agreement to each of the terms set forth in the proposal which are recited by Defendant’s counsel including: (1) value of the marital domicile; (2) the parties equal responsibility for payment of transfer taxes; (3) Defendant’s distribution being reduced only by the balance of the mortgage as of the date of commencement and Defendant’s share of the transfer taxes; (4) removal of Defendant’s name from the mortgage within 120 days of the date of the stipulation; and (5) confirming that except for these terms no additional issues are being resolved by ‘this Stipulation.’
Notably, while Defendant’s counsel now asserts her e-mail does not constitute a binding agreement, her own e-mail refers to the terms she set forth as ‘this Stipulation.’ Further, while the terms recited by Defendant’s counsel within the Stipulation are ‘subject to written confirmation’ as to the balance of the mortgage as of the date of commencement, such requirement is merely for further documentation of the binding agreement which was formed following the e-mail of Plaintiff’s counsel accepting the ‘Stipulation’ presented by Defendant’s counsel.
As to the use of the words “Without Prejudice; Not to Be Used in Litigation” in the “Subject” of the emails, the court found that the reliance by defendant’s counsel on such language was “disingenuous and unpersuasive, as it contradicts the clear and unambiguous language set forth within [] the e-mail of defendant’s counsel, wherein she refers to the terms she crafted as ‘this Stipulation’…This language is evidence of the unmistakable intent and mutual understanding of both counsel that through the recital of the terms of the ‘Stipulation’ by Defendant’s counsel beginning with ‘[Redacted] will agree to the proposed settlement on the marital residence’ (emphasis added) that Defendant was accepting the proposed settlement offered by Plaintiff by confirming all material terms which were then confirmed as accepted by Plaintiff’s counsel who noted ‘we will agree to this.’ A clear reading of the language contained in both e-mails reflects a mutual understanding and intent of both counsel that the e-mail of Defendant’s counsel was an acceptance of Plaintiff’s final settlement offer capable of confirmation of continued acceptance by Plaintiff’s counsel which occurred by way of the e-mail of Plaintiff’s counsel.”
Plaintiff’s motion was therefore granted as the emails between counsel were held to constitute a binding agreement as to the marital home “and the parties are directed to comply with such terms.”
Coming full circle, while CPLR Section 2104 may permit open court matrimonial stipulations in certain circumstances, I am struggling to understand how an email exchange between counsel—particularly one with the “Without Prejudice” and “Not to be Used in Litigation” header—can override the requirement a properly acknowledged opting out agreement pursuant to Section 236(B)(3) of the Domestic Relations Law.
Not only does J.G. indicate that “without prejudice” language cannot be depended upon, but it also, in my estimation, cautions against the use of referring to an “agreement” or “stipulation” with a capital “A” or “S,” as that too could reflect intent to enter into a binding agreement (versus, I suppose, referring to a “draft agreement” or “draft stipulation”).
Further, the words “subject to written confirmation” should potentially, based upon J.G., be replaced with “For the avoidance of any doubt, this email exchange shall not constitute a binding, enforceable agreement under any circumstances” (emphasis added). While that may seem like overkill, we cannot ignore this decision.
As divorce lawyers, we must choose our words carefully, particularly in emails. The J.G. decision is a reminder that how we choose our words can carry enormous consequences in the outcome of a matrimonial case.
Until we have more clarity on what constitutes a binding agreement, I suggest we all proceed with even more caution in our daily email exchanges. As for me, I will now be re-reviewing all of the “Without Prejudice/For Settlement Purposes Only/Not for Use in Litigation” emails I’ve sent in 2024, albeit at the risk of going into cardiac arrest.
" Email Exchanges in Divorce Litigation Carry Immense Risk," by Alan R. Feigenbaum was published in the New York Law Journal on June 28, 2024.
Reprinted with permission from the June 28, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.