Bill Text: OH HB467 | 2009-2010 | 128th General Assembly | Introduced
Bill Title: To establish a statutory collaborative family law process to aid in the resolution of family law disputes.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2010-03-15 - To Judiciary [HB467 Detail]
Download: Ohio-2009-HB467-Introduced.html
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Representatives Harwood, Blessing
Cosponsors:
Representatives Murray, Wagner, Pillich, McGregor, Book, Mecklenborg, Phillips, Bolon, Letson, Hollington, Grossman, Bacon, Belcher, Williams, B.
| To enact sections 3117.11, 3117.12, 3117.13, 3117.14, | 1 |
| 3117.15, 3117.16, 3117.17, 3117.18, 3117.19, | 2 |
| 3117.20, 3117.21, 3117.22, 3117.23, 3117.24, | 3 |
| 3117.25, 3117.26, and 3117.27 of the Revised Code | 4 |
| to establish a statutory collaborative family law | 5 |
| process to aid in the resolution of family law | 6 |
| disputes. | 7 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
| Section 1. That sections 3117.11, 3117.12, 3117.13, 3117.14, | 8 |
| 3117.15, 3117.16, 3117.17, 3117.18, 3117.19, 3117.20, 3117.21, | 9 |
| 3117.22, 3117.23, 3117.24, 3117.25, 3117.26, and 3117.27 be | 10 |
| enacted to read as follows: | 11 |
| Sec. 3117.11. As used in sections 3117.11 to 3117.27 of the | 12 |
| Revised Code: | 13 |
| (A) "Collaborative family law communication" means any | 14 |
| statement that occurs after the parties sign a collaborative | 15 |
| family law participation agreement and before the collaborative | 16 |
| family law process is concluded and that is made for the purpose | 17 |
| of conducting, participating in, continuing, or reconvening a | 18 |
| collaborative law process. | 19 |
| (B) "Collaborative family law participation agreement" means | 20 |
| an agreement by persons to participate in a collaborative family | 21 |
| law process. | 22 |
| (C) "Collaborative family law process" means a procedure | 23 |
| intended to resolve a matter without intervention by a court in | 24 |
| which parties sign a collaborative family law participation | 25 |
| agreement and are represented by collaborative family lawyers. | 26 |
| (D) "Collaborative family lawyer" means a lawyer who | 27 |
| represents a party in a collaborative family law process. | 28 |
| (E) "Collaborative matter" or "matter" means a dispute, | 29 |
| transaction, claim, problem, or issue for resolution that arises | 30 |
| under Title XXXI of the Revised Code and is described in a | 31 |
| collaborative family law participation agreement. The term | 32 |
| includes a dispute, claim, or issue in a proceeding. | 33 |
| (F) "Family or household member" has the same meaning as in | 34 |
| section 3113.31 of the Revised Code. | 35 |
| (G) "Law firm" means an association of lawyers who practice | 36 |
| law together in a partnership, professional corporation, sole | 37 |
| proprietorship, limited liability company, or other association, | 38 |
| lawyers employed in a legal services organization, the legal | 39 |
| department of a corporation or other organization, or the legal | 40 |
| department of a government or governmental subdivision, agency, or | 41 |
| instrumentality. | 42 |
| (H) "Nonparty participant" means a person, other than a party | 43 |
| and the party's collaborative family lawyer, that participates in | 44 |
| a collaborative family law process. | 45 |
| (I) "Party" means a person that signs a collaborative family | 46 |
| law participation agreement and whose consent is necessary to | 47 |
| resolve a matter. | 48 |
| (J) "Person" means an individual, corporation, business | 49 |
| trust, estate, trust, partnership, limited liability company, | 50 |
| association, joint venture, public corporation, government or | 51 |
| governmental subdivision, agency, or instrumentality, or any other | 52 |
| legal or commercial entity. | 53 |
| (K) "Proceeding" means a judicial, administrative, arbitral, | 54 |
| or other adjudicative process before a court, including related | 55 |
| prehearing and post-hearing motions, conferences, and discovery. | 56 |
| (L) "Prospective party" means a person that discusses the | 57 |
| possibility of signing a collaborative family law participation | 58 |
| agreement with a prospective collaborative family lawyer. | 59 |
| (M) "Record" means information that is inscribed on a | 60 |
| tangible medium or that is stored in an electronic or other medium | 61 |
| and is retrievable in perceivable form. | 62 |
| (N) "Related to a collaborative family law matter" or | 63 |
| "related to a matter" means involving the same parties, | 64 |
| transaction or occurrence, nucleus of operative fact, claim, | 65 |
| issue, or dispute as a matter. | 66 |
| (O) "Sign" means, with present intent to authenticate or | 67 |
| adopt a record in order, to do either of the following: | 68 |
| (1) Execute or adopt a tangible symbol; | 69 |
| (2) Attach to or logically associate with the record an | 70 |
| electronic symbol, sound, or process. | 71 |
| Sec. 3117.12. (A) Sections 3117.11 to 3117.27 of the Revised | 72 |
| Code apply to a collaborative family law participation agreement | 73 |
| that meets the requirements of section 3117.13 of the Revised Code | 74 |
| and is signed on or after the effective date of this section. | 75 |
| (B) A court may not order a party to participate in a | 76 |
| collaborative family law process over that party's objection. | 77 |
| Sec. 3117.13. (A) A collaborative family law participation | 78 |
| agreement must be in a record, be signed by the parties, and | 79 |
| include all of the following: | 80 |
| (1) A statement of the parties' intent to resolve a matter | 81 |
| through a collaborative family law process under sections 3117.11 | 82 |
| to 3117.27 of the Revised Code; | 83 |
| (2) A description of the nature and scope of the matter; | 84 |
| (3) The identity of the collaborative family lawyer who | 85 |
| represents each party in the collaborative family law process; | 86 |
| (4) A statement by each collaborative family lawyer | 87 |
| confirming the lawyer's representation of a party in the | 88 |
| collaborative family law process. | 89 |
| (B) Parties to a collaborative family law participation | 90 |
| agreement may agree to include additional provisions not | 91 |
| inconsistent with sections 3117.11 to 3117.27 of the Revised Code. | 92 |
| Sec. 3117.14. (A) A collaborative family law process begins | 93 |
| when the parties sign a collaborative family law participation | 94 |
| agreement. | 95 |
| (B) A collaborative family law process is concluded by any of | 96 |
| the following: | 97 |
| (1) A negotiated resolution of the matter as evidenced by a | 98 |
| signed record; | 99 |
| (2) A negotiated resolution of a portion of the matter as | 100 |
| evidenced by a signed record in which the parties agree that the | 101 |
| remaining portions of the matter will not be resolved in the | 102 |
| collaborative family law process; | 103 |
| (3) Termination of the process under division (C) of this | 104 |
| section. | 105 |
| (C) A collaborative family law process terminates when any of | 106 |
| the following occurs: | 107 |
| (1) A party gives notice in a record that the collaborative | 108 |
| family law process is ended. | 109 |
| (2) A party does either of the following: | 110 |
| (a) Begins a proceeding related to the collaborative family | 111 |
| law matter without the agreement of all parties; | 112 |
| (b) In a pending proceeding related to the collaborative | 113 |
| family law matter, does any of the following: | 114 |
| (i) Initiates a pleading, motion, order to show cause, or | 115 |
| request for a conference with the court; | 116 |
| (ii) Requests that the proceeding be put on the court's | 117 |
| docket; | 118 |
| (iii) Takes similar action requiring notice to be sent to the | 119 |
| parties; | 120 |
| (iv) Except as otherwise provided by division (E)(2) of this | 121 |
| section, discharges a collaborative family lawyer. | 122 |
| (3) A collaborative family lawyer withdraws from further | 123 |
| representation of a party. | 124 |
| (4) Termination occurs in any other way provided for in the | 125 |
| collaborative family law participation agreement. | 126 |
| (D) A party may terminate a collaborative family law process | 127 |
| with or without cause. A notice of termination need not specify a | 128 |
| reason for terminating the process. | 129 |
| (E)(1) A collaborative family lawyer who is discharged or who | 130 |
| withdraws shall give prompt notice in a record of the discharge or | 131 |
| withdrawal to all other parties. | 132 |
| (2) Notwithstanding the discharge or withdrawal of a | 133 |
| collaborative family lawyer, a collaborative family law process | 134 |
| continues if the unrepresented party engages a successor | 135 |
| collaborative family lawyer, and, in a signed record, all parties | 136 |
| consent to continue the process by reaffirming the collaborative | 137 |
| family law participation agreement, the collaborative family law | 138 |
| participation agreement is amended to identify the successor | 139 |
| collaborative family lawyer, and the successor collaborative | 140 |
| family lawyer confirms the lawyer's representation of a party in | 141 |
| the collaborative family law process. | 142 |
| (F) A collaborative family law process does not terminate if, | 143 |
| with the consent of all parties, a party requests a court to | 144 |
| approve a negotiated resolution of the matter or any portion of | 145 |
| the matter as evidenced by a signed record. | 146 |
| Sec. 3117.15. (A) Parties to a proceeding pending before a | 147 |
| court may sign a collaborative family law participation agreement | 148 |
| to seek to resolve a matter related to the proceeding. Parties | 149 |
| shall promptly file a notice of the agreement with the court after | 150 |
| the collaborative family law participation agreement is signed. | 151 |
| Subject to division (C) of this section, the filing operates as a | 152 |
| stay of the proceeding. | 153 |
| (B) Parties shall promptly file a notice of termination in a | 154 |
| record with the court when a collaborative family law process | 155 |
| terminates. The stay of the proceeding under division (A) of this | 156 |
| section is lifted when the notice is filed with the court. The | 157 |
| notice may not specify any reason for the termination. | 158 |
| (C) A court may require parties and collaborative family | 159 |
| lawyers to provide status reports on the proceeding. A status | 160 |
| report may not include a report, assessment, evaluation, | 161 |
| recommendation, finding, or other communication regarding a | 162 |
| collaborative family law process, except that a court may require | 163 |
| parties and lawyers to disclose in a status report whether the | 164 |
| process is ongoing or concluded. | 165 |
| A communication made in violation of this division may not be | 166 |
| considered by a court. | 167 |
| Sec. 3117.16. (A) Except as otherwise provided in division | 168 |
| (C) of this section, a collaborative family lawyer may not appear | 169 |
| before a court to represent a party in a proceeding related to the | 170 |
| collaborative family law matter. | 171 |
| (B) Except as otherwise provided in division (C) of this | 172 |
| section and in sections 3117.17 and 3117.18 of the Revised Code, a | 173 |
| lawyer in a law firm with which the collaborative family lawyer is | 174 |
| associated may not appear before a court to represent a party in a | 175 |
| proceeding related to the collaborative family law matter if the | 176 |
| collaborative family lawyer is disqualified from doing so under | 177 |
| division (A) of this section. | 178 |
| (C) A collaborative family lawyer or a lawyer in a law firm | 179 |
| with which the collaborative family lawyer is associated may | 180 |
| represent a party for the following purposes: | 181 |
| (1) To ask a court to approve an agreement resulting from the | 182 |
| collaborative family law process; | 183 |
| (2) To seek or defend an emergency order to protect the | 184 |
| health, safety, welfare, or interests of a party or of a family or | 185 |
| household member of a party if a successor lawyer is not | 186 |
| immediately available to represent the party or family or | 187 |
| household member of the party. If a successor lawyer is not | 188 |
| immediately available to represent the party or family or | 189 |
| household member of the party, divisions (A) and (B) of this | 190 |
| section do not apply until a successor lawyer assumes | 191 |
| representation of the party or family or household member of the | 192 |
| party or reasonable measures are taken to protect the health, | 193 |
| safety, welfare, or interests of the party or family or household | 194 |
| member of the party. | 195 |
| Sec. 3117.17. (A) The disqualification of a collaborative | 196 |
| family lawyer under division (A) of section 3117.16 of the Revised | 197 |
| Code applies to a collaborative family lawyer representing a party | 198 |
| without fee. | 199 |
| (B) After a collaborative family law process concludes, | 200 |
| another lawyer in a law firm with which the collaborative family | 201 |
| lawyer is associated may represent the party without fee in the | 202 |
| collaborative matter or a matter related to the collaborative | 203 |
| matter if all of the following apply: | 204 |
| (1) The party has an annual income that qualifies the party | 205 |
| for free legal representation under the criteria established by | 206 |
| the law firm for free legal representation. | 207 |
| (2) The collaborative family law participation agreement so | 208 |
| provides. | 209 |
| (3) The collaborative family lawyer is isolated from any | 210 |
| participation in the collaborative matter or a matter related to | 211 |
| the collaborative matter through procedures within the law firm | 212 |
| that are reasonably calculated to isolate the collaborative family | 213 |
| lawyer from participation in the collaborative matter or a matter | 214 |
| related to the collaborative matter. | 215 |
| Sec. 3117.18. (A) The disqualification of a collaborative | 216 |
| family lawyer under division (A) of section 3117.16 of the Revised | 217 |
| Code applies to a collaborative family lawyer representing a party | 218 |
| that is a government or governmental subdivision, agency, or | 219 |
| instrumentality. | 220 |
| (B) After a collaborative family law process concludes, | 221 |
| another lawyer in a law firm with which the collaborative family | 222 |
| lawyer is associated may represent the government or governmental | 223 |
| subdivision, agency, or instrumentality in thecollaborative | 224 |
| matter or a matter related to the collaborative matter if both of | 225 |
| the following apply: | 226 |
| (1) The collaborative family law participation agreement so | 227 |
| provides. | 228 |
| (2) The collaborative family lawyer is isolated from any | 229 |
| participation in the collaborative matter or matter related to the | 230 |
| collaborative matter through procedures within the law firm that | 231 |
| are reasonably calculated to isolate the collaborative family | 232 |
| lawyer from participation in the collaborative matter or matter | 233 |
| related to the collaborative matter. | 234 |
| Sec. 3117.19. During the collaborative family law process, | 235 |
| at the request of another party, a party shall make timely, full, | 236 |
| candid, and informal disclosure of information related to the | 237 |
| collaborative matter without formal discovery and shall update | 238 |
| promptly information that has materially changed. Parties may | 239 |
| define the scope of disclosure, except as otherwise provided by | 240 |
| law. | 241 |
| Sec. 3117.20. Sections 3117.11 to 3117.27 of the Revised | 242 |
| Code do not affect the professional responsibility obligations and | 243 |
| standards applicable to a lawyer or other licensed professional or | 244 |
| the statutory obligation of a person to report abuse or neglect of | 245 |
| a child or adult. | 246 |
| Sec. 3117.21. A collaborative family law communication is | 247 |
| confidential to the extent agreed by the parties in a signed | 248 |
| record or as provided by the law of this state. | 249 |
| Sec. 3117.22. (A) Subject to sections 3117.23 and 3117.24 of | 250 |
| the Revised Code, a collaborative family law communication is | 251 |
| privileged under division (B) of this section, is not subject to | 252 |
| discovery, and is not admissible in evidence. | 253 |
| (B) In a proceeding, the following privileges apply: | 254 |
| (1) A party may refuse to disclose, and may prevent any other | 255 |
| person from disclosing, a collaborative family law communication. | 256 |
| (2) A nonparty participant may refuse to disclose, and may | 257 |
| prevent any other person from disclosing, a collaborative family | 258 |
| law communication of the nonparty participant. | 259 |
| (C) Evidence or information that is otherwise admissible or | 260 |
| subject to discovery does not become inadmissible or protected | 261 |
| from discovery solely by reason of its disclosure or use in a | 262 |
| collaborative family law process. | 263 |
| Sec. 3117.23. (A) A privilege under section 3117.22 of the | 264 |
| Revised Code may be waived in a record or orally during a | 265 |
| proceeding if it is expressly waived by all parties and, in the | 266 |
| case of the privilege of a nonparty participant, it is also | 267 |
| expressly waived by the nonparty participant. | 268 |
| (B) A person that discloses or makes a representation about a | 269 |
| collaborative family law communication that prejudices another | 270 |
| person in a proceeding may not assert a privilege under section | 271 |
| 3117.22 of the Revised Code relating to that communication. | 272 |
| Sec. 3117.24. (A) There is no privilege under section | 273 |
| 3117.22 of the Revised Code for a collaborative family law | 274 |
| communication that is any of the following: | 275 |
| (1) Available to the public under section 149.43 of the | 276 |
| Revised Code or made during a session of a collaborative family | 277 |
| law process that is open, or is required by law to be open, to the | 278 |
| public; | 279 |
| (2) A threat or statement of a plan to inflict bodily injury | 280 |
| or commit a crime of violence; | 281 |
| (3) Intentionally used to plan a crime, commit or attempt to | 282 |
| commit a crime, or conceal an ongoing crime or ongoing criminal | 283 |
| activity; | 284 |
| (4) In an agreement resulting from the collaborative family | 285 |
| law process, evidenced by a record signed by all parties to the | 286 |
| agreement. | 287 |
| (B) The privileges under section 3117.22 of the Revised Code | 288 |
| for a collaborative family law communication do not apply to the | 289 |
| extent that a communication is either of the following: | 290 |
| (1) Sought or offered to prove or disprove a claim or | 291 |
| complaint of professional misconduct or malpractice arising from | 292 |
| or related to a collaborative family law process; | 293 |
| (2) Sought or offered to prove or disprove abuse, neglect, | 294 |
| abandonment, or exploitation of a child, unless a children's or | 295 |
| protective service agency or an adult protective services agency | 296 |
| is a party to or otherwise participates in the collaborative | 297 |
| family law process. | 298 |
| (C) There is no privilege under section 3117.22 of the | 299 |
| Revised Code if a court finds, after a hearing in camera, that the | 300 |
| party seeking discovery or the proponent of the evidence has shown | 301 |
| that the evidence is not otherwise available, the need for the | 302 |
| evidence substantially outweighs the interest in protecting | 303 |
| confidentiality, and the collaborative family law communication is | 304 |
| sought or offered in a criminal action or in a proceeding seeking | 305 |
| rescission or reformation of a contract arising out of the | 306 |
| collaborative family law process or in which a defense to avoid | 307 |
| liability on the contract is asserted. | 308 |
| (D) If a collaborative family law communication is subject to | 309 |
| an exception under division (B) or (C) of this section, only the | 310 |
| portion of the communication necessary for the application of the | 311 |
| exception may be disclosed or admitted. | 312 |
| (E) Disclosure or admission of evidence excepted from the | 313 |
| privilege under division (B) or (C) of this section does not | 314 |
| render the evidence or any other collaborative family law | 315 |
| communication discoverable or admissible for any other purpose. | 316 |
| (F) The privileges under section 3117.22 of the Revised Code | 317 |
| do not apply if the parties agree in advance in a signed record, | 318 |
| or if a record of a proceeding reflects agreement by the parties, | 319 |
| that all or part of a collaborative family law process is not | 320 |
| privileged. This division does not apply to a collaborative family | 321 |
| law communication made by a person that did not receive actual | 322 |
| notice of the agreement before the communication was made. | 323 |
| Sec. 3117.25. Even though a collaborative family law | 324 |
| participation agreement fails to meet the requirements of section | 325 |
| 3117.13 of the Revised Code, a court may find that the parties | 326 |
| intended to enter into a collaborative family law participation | 327 |
| agreement if the parties signed a record indicating an intention | 328 |
| to enter into a collaborative family law participation agreement | 329 |
| and the parties reasonably believed they were participating in a | 330 |
| collaborative family law process. If a court makes such a finding, | 331 |
| sections 3117.11 to 3117.27 of the Revised Code apply to the same | 332 |
| extent as if the parties had entered into a valid collaborative | 333 |
| family law participation agreement. | 334 |
| Sec. 3117.26. Sections 3117.11 to 3117.27 of the Revised | 335 |
| Code modify, limit, and supersede the "Electronic Signatures in | 336 |
| Global and National Commerce Act," 114 Stat. 464, 15 U.S.C. 7001, | 337 |
| et seq., but do not modify, limit, or supersede section 101(c) of | 338 |
| that act, 15 U.S.C. 7001(c), or authorize electronic delivery of | 339 |
| any of the notices described in section 103(b) of that act, 15 | 340 |
| U.S.C. 7003(b). | 341 |
| Sec. 3117.27. Sections 3117.11 to 3117.27 of the Revised | 342 |
| Code may be cited as the "Ohio collaborative family law act." | 343 |
