Get It “In Writing”

The term “in writing” has changed a great deal since the last generation. In the past, a writing requirement was easy to identify; the text of the agreement and the signature had to appear on paper, an actual hard copy that can be held in one’s  hand. Most states, Arkansas included, have adopted the Uniform Electronic Transactions Act (UETA). The UETA was adopted by the National Conference of Commissioners on Uniform State Laws in 1999 guaranteeing that electronic transactions are just as enforceable as those on paper are. In short, the UETA provides that a contract cannot be denied legal effect or enforceability solely because an electronic record was used in its formation. It also states that any law that requires a physical record will be satisfied by an electronic record and that any signature requirement can be an electronic signature. UETA rules are primarily for electronic records and electronic signatures relating to transactions.

An electronic record is defined as, a record created, generated, sent, communicated, received, or stored by electronic means. Both email and text messages qualify. An electronic signature is defined as an electronic sound, symbol, or process attached to or logically associated with a record and executed or adipted by a person with the intent to sign the record. The 2010 Arkansas Code 25-32-105 addresses the use of electronic records and electronic signatures and the variations by agreement.

1. Does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.
2. Applies only to transactions between parties that both have agreed to conduct transactions by electronic means. The agreement is determined from context and surrounding circumstances, which includes the parties’ conduct.
3. A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. This right may not be waived by agreement.
4. The presence in certain provisions of the words “unless otherwise agreed”, or similar words, does not imply that the effect of other provisions may not be varied by agreement.
5. Whether an electronic record or electronic signature has legal consequences and other applicable law.

While 25-32-107 addresses the legal recognition of electronic records, electronic signatures, and electronic contract.

1. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
2. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
3. If a law requires a record to be in writing, an electronic record satisfies the law.
4. If a law requires a signature, an electronic signature satisfies the law.

Based on the above information, one would assume that family law would follow suit regarding electronic signatures, but not necessarily. You see, case law has yet to begin exploring the interaction between family writing requirements and statutes regarding electronic writings, but is is certainly not safe to assume that all writings are acceptable as an electronic record, especially modifications to child custody and visitation.  

Electronic signatures, electronic records, hard copies, “wet-ink” documents are all ways of making documents official for the courts. However, electronic signatures and electronic records are a bit more confusing due to the rapid change in technology and the slow pace laws and rules are changed. To make sure you are signing in the proper manner and protecting your family, call 479.434.2414 for our Fort Smith office and 479.802.6560 for our Northwest Arkansas office. From your first consultation until settlement of your case, I strive to remain accessible through the legal process.