Can you make handwritten changes to a Marital Settlement Agreement?

What happens when hand written changes are made to a printed Marital Settlement Agreement?

In order to settle a divorce case in Florida, both spouses will need to sign a Marital Settlement Agreement (“MSA”). Typically, a MSA is presented in a printed format by one spouse to the other Sometimes, the spouse receiving the proposed Agreement will make handwritten changes to the printed MSA, and then return the Agreement. These changes are usually initialed both spouses.

When a spouse makes handwritten changes to a printed MSA, do the handwritten terms take priority over the printed terms? The answer is “Yes.”

In a recent case, Florida’s 5th District Court of Appeals ruled that the handwritten changes are a rejection of the printed MSA, and a counteroffer. Romaine v. Romaine (Fla. 5th DCA, October 18, 2019). In other words, to create an binding agreement, the party who made the original offer would need to accept the new handwritten terms. Absent this “meeting of the minds,” there is no agreement.

Quite frankly, it was surprising to me this was even a question. If you present me with a contract, and I make handwritten changes to it, the original proposal is “no more.” However, in the Romaine case, it was not obvious to the trial court. Instead, the trial court enforced the printed terms of the MSA and disregarded the handwritten changes. I read the appellate briefs, and the facts of this case are fairly convoluted.

What are the lessons from this case?

First, avoid handwritten changes if at all possible. If hand written changes are not avoidable, I would initial the proposed handwritten changes, and return the agreement with a cover-letter stating that the changes are a counteroffer, and request that the other party initial the change to accept the counteroffer.

Second, the collaborative family law process (“Collaborative Divorce”) would likely have avoided this problem. In a Collaborative Divorce, once the parties have verbally agreed on the terms, the attorneys will prepare the agreement, and trade drafts back and forth in Word. In other words, it is not a rushed process were an agreement has to be written the exact instance the verbal terms are reached. The final Martial Settlement Agreement is presented to the parties, only after the lawyers have worked out all the drafting question.

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