§54.03 Agreements and Their Enforceability

• Jurisdiction: Washington

§ 54.03 AGREEMENTS AND THEIR ENFORCEABILITY

[1] Oral Agreements

Although written agreements are customary and recommended, an oral agreement may be upheld in equity. In Dewberry v. George, 115 Wn. App. 351, 62 P.3d 525, review denied, 150 Wn.2d 1006 (2003), the court held that performance or partial performance of an oral prenuptial agreement or separate property agreement in consideration of marriage will make it enforceable. In In re Estate of Nelson, 85 Wn.2d 602, 613, 537 P.2d 765 (1975), a separation agreement drafted by the wife's attorney was upheld even though it was signed only by the husband before the wife's death. The court held that property settlements that "evince a desire on the part of one spouse to grant certain property and no more to the other" are marriage settlement agreements within the meaning of RCW 11.12.051. Clear, cogent, and convincing evidence is necessary to establish an oral separate property agreement. Dewberry, 115 Wn. App. 351. An additional example is In re Marriage of Mueller, 140 Wn. App. 498, 167 P.3d 568 (2007), review denied, 163 Wn.2d 1043 (2008). The Mueller court stated that because an oral agreement is hard to prove, the parties must consistently adhere to its provisions for enforceability. 140 Wn. App. at 504-05. The court also noted that an agreement to change management of property (in that case by putting it in one party's account) did not necessarily imply change of character from separate to community or vice versa. Id. at 504.

[2] Written Agreements

Written agreements may appear in the form of a formal, typed document with the signatures of counsel, mediator, or the parties; as a CR 2A agreement; or as a handwritten agreement entered into between the parties without benefit of counsel. If a disputed agreement is neither stipulated on the record in open court nor memorialized by a writing signed by the party to be bound, as required by CR 2A and RCW 2.44.010, it is not enforceable. Bryant v. Palmer Coking Coal Co., 67 Wn. App. 176, 858 P.2d 1110 (1992), review denied, 120 Wn.2d 1027 (1993). Thus, CR 2A is the enforcement mechanism for settlement agreements. It states as follows:

No agreement or consent between parties or attorneys in respect to the proceedings in a cause, the purpose of which is disputed, will be regarded by the court unless the same shall have been made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereof shall be in writing and

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