Bill Text: TX HB3833 | 2011-2012 | 82nd Legislature | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to the adoption of a uniform collaborative law Act in regard to family law matters.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB3833 Detail]

Download: Texas-2011-HB3833-Introduced.html

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By: Phillips H.B. No. 3833

A BILL TO BE ENTITLED
AN ACT
relating to the adoption of the Uniform Collaborative Family Law
Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Family Code is amended by adding a new Chapter 15,
entitled "Uniform Collaborative Family Law Act", to read as
follows:
CHAPTER 15. UNIFORM COLLABORATIVE FAMILY LAW ACT
SUBCHAPTER A. APPLICATION AND CONSTRUCTION
Sec. 15.0001. POLICY. It is the policy of this state to
encourage the peaceable resolution of disputes, with special
consideration given to disputes involving the parent-child
relationship, including the resolution of issues involving
conservatorship, possession, and support of children, and the early
settlement of pending litigation through voluntary settlement
procedures.
Sec. 15.0002. CONFLICTS BETWEEN PROVISIONS. If a provision of
this chapter conflicts with a provision of this title or another
statute or rule of this state and the conflict cannot be reconciled,
this chapter prevails.
SUBCHAPTER B. GENERAL PROVISIONS
Sec. 15.001. SHORT TITLE. This Chapter may be cited as the
Uniform Collaborative Family 18 Law Act.
Sec. 15.002 DEFINITIONS. In this Chapter:
(a)"Collaborative family law communication" means a
statement made by a party or non-party participant, whether oral or
in a record, or verbal or nonverbal, that:
(1) is made to conduct, participate in, continue, or
reconvene a collaborative family law process; and
(2) occurs after the parties sign a collaborative
family law participation 1 agreement and before the
collaborative family law process is concluded.
(b) "Collaborative family law participation agreement"
means an agreement by persons to participate in a collaborative
family law process.
(c) "Collaborative family law process" means a procedure
intended to resolve a collaborative matter without intervention by
a tribunal in which persons:
(1) sign a collaborative family law participation
agreement; and
(2) are represented by collaborative lawyers.
(d) "Collaborative lawyer" means a lawyer who represents a
party in a collaborative family law process.
(e) "Collaborative matter" means a dispute, transaction,
claim, problem, or issue for resolution described in a
collaborative family law participation agreement. The term
includes a dispute, claim, or issue in a proceeding.
(f) "Law firm" means:
(1) lawyers who practice law together in a
partnership, professional corporation, sole proprietorship,
limited liability company, or association; and
(2) lawyers employed in a legal services organization,
or the legal department of a corporation or other
organization, or the legal department of a government or
governmental subdivision, agency, or instrumentality.
(g) "Non-party participant" means a person, including a
collaborative lawyer, other than a party, that participates in a
collaborative family law process.
(h) "Party" means a person that signs a collaborative family
law participation agreement and whose consent is necessary to
resolve a collaborative matter.
(i) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government or
governmental subdivision, agency, or instrumentality, or any other
legal or commercial entity.
(j) "Proceeding" means a judicial, administrative,
arbitral, or other adjudicative process before a tribunal,
including related prehearing and post-hearing motions,
conferences, and discovery.
(k) "Prospective party" means a person that discusses with a
prospective collaborative lawyer the possibility of signing a
collaborative family law participation agreement.
(l) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form.
(m) "Related to a collaborative matter" means involving the
same parties, transaction or occurrence, nucleus of operative fact,
dispute, claim, or issue as the collaborative matter.
(n) "Sign" means, with present intent to authenticate or
adopt a record:
(1) to execute or adopt a tangible symbol; or
(2) to attach to or logically associate with the
record an electronic symbol, sound, or process.
(o) "Tribunal" means a court, arbitrator, administrative
agency, or other body acting in an adjudicative capacity which,
after presentation of evidence or legal argument, has jurisdiction
to render a decision affecting a party's interests in a matter.
Sec. 15.003. APPLICABILITY. This act applies to a
collaborative family law participation agreement that meets the
requirements of Section 15.004, and if applicable, Section 15.031,
signed on or after the effective date of this act. This act is
limited to matters arising under Titles 1 and 5, Family Code.
Sec. 15.004 REQUIREMENTS OF PARTICIPATION AGREEMENT AND 1
SETTLEMENT AGREEMENT. (a) A collaborative family law participation
agreement must:
(1) be in a record;
(2) be signed by the parties;
(3) state the parties' intention to resolve a
collaborative matter through a collaborative family law
process under this act;
(4) describe the nature and scope of the matter;
(5) identify the collaborative lawyer who represents
each party in the process;
(6) contain a statement by each collaborative lawyer
confirming the lawyer's representation of a party in the
collaborative family law process.
(b) A collaborative family law participation agreement must
include provisions for:
(1) suspending tribunal intervention in the
collaborative matter while the parties are using the
collaborative family law process; and
(2) unless otherwise agreed in writing, jointly
engaging any professionals, experts or advisors as neutrals.
(c) Parties may agree to include in a collaborative family
law participation agreement additional provisions not inconsistent
with this chapter.
Sec. 15.005. BEGINNING AND CONCLUDING A COLLABORATIVE
FAMILY LAW PROCESS.(a) A collaborative family law process begins
when the parties sign a collaborative family law participation
agreement.
(b) A tribunal may not order a party to participate in a
collaborative family law process over that party's objection.
(c) A collaborative family law process is concluded by a:
(1) resolution of a collaborative matter as evidenced
by a signed record;
(2) resolution of a part of the collaborative matter,
evidenced by a signed record, in which the parties agree that
the remaining parts of the matter will not be resolved in the
process; or
(3) termination of the process.
(d) A collaborative family law process terminates:
(1) when a party gives notice to other parties in a
record that the process is ended; or
(2) when a party:
(A) begins a proceeding related to a
collaborative matter without the agreement of all
parties; or
(B) in a pending proceeding related to the
matter:
(i) without the agreement of all parties,
initiates a pleading, motion, or request for a
conference with the tribunal;
(ii) initiates an order to show cause or
requests that the proceeding be put on the
tribunal's active calendar; or
(iii) takes similar action requiring notice
to be sent to the parties;
(3) except as otherwise provided by subsection (g),
when a party discharges a collaborative lawyer or a
collaborative lawyer withdraws from further representation
of a party.
(e) A party's collaborative lawyer shall give prompt notice
to all other parties in a record of a discharge or withdrawal.
(f) A party may terminate a collaborative family law process
with or without cause.
(g) Notwithstanding the discharge or withdrawal of a
collaborative lawyer, a collaborative family law process
continues, if not later than 30 days after the date that the notice
of the discharge or withdrawal of a collaborative lawyer required
by subsection (e) is sent to the parties:
(1) the unrepresented party engages a successor
collaborative lawyer; and
(2) in a signed record:
(A) the parties consent to continue the process
by reaffirming the collaborative family law
participation agreement;
(B) the agreement is amended to identify the
successor collaborative lawyer; and
(C) the successor collaborative lawyer confirms
the lawyer's representation of a party in the
collaborative process.
(h) A collaborative family law process does not conclude if,
with the consent of the parties to a signed record resolving all or
part of the collaborative matter, a party requests a tribunal to
approve a resolution of the collaborative family law matter or any
part thereof as evidenced by a signed record.
(i) A collaborative family law participation agreement may
provide additional methods of concluding a collaborative family law
process.
Sec. 15.006. PROCEEDINGS PENDING BEFORE TRIBUNAL; STATUS
REPORT. (a) Persons in a proceeding pending before a tribunal may
sign a collaborative family law participation agreement to seek to
resolve a collaborative matter related to the proceeding. Parties
shall file promptly with the tribunal a notice of the agreement
after it is signed. Subject to subsection (c) and Sec. 15.007 and
Sec. 15.008, the filing operates as a stay of the proceeding.
(b) A tribunal that is notified 30 days before a proceeding
that the parties are using the collaborative family law process to
attempt to settle a collaborative matter may not, until a party
notifies the tribunal that the collaborative family law process did
not result in a settlement:
(1) set a proceeding or a hearing in the collaborative
family law matter;
(2) impose discovery deadlines;
(3) require compliance with scheduling orders; or
(4) dismiss the proceeding.
(c) The parties shall notify the tribunal in a pending
proceeding if the collaborative family law process results in a
settlement. If the collaborative family law process does not result
in a settlement, the parties shall file in a pending proceeding:
(1) a status report not later than the 180th day after
the date of the collaborative family law participation
agreement was signed or, if the proceeding was filed by
agreement after the collaborative family law participation
agreement was signed, not later than the 180th day after the
date the proceeding was filed, whichever date is later; and
(2) a status report on or before the first anniversary
of the date of the collaborative family law
participation agreement was signed or, if the
proceeding was filed by agreement after the
collaborative family law participation agreement was
signed, on or before the first anniversary of the date
the proceeding was filed, whichever date is later,
accompanied by a motion for continuance that the
tribunal shall grant if the status report indicates the
desire of the parties to continue to use the
collaborative family law process.
(d) If the collaborative family law process does not result
in a settlement on or before the second anniversary of the date that
the proceeding was filed, the tribunal may:
(1) set the proceeding for trial on the regular
docket; or
(2) dismiss the proceeding without prejudice.
(e) Parties shall file promptly with the tribunal notice in
a record when a collaborative family law process concludes. The
stay of the proceeding under subsection (a) is lifted when the
notice is filed. The notice may not specify any reason for
termination of the process.
(f) A tribunal in which a proceeding is stayed under
subsection (a) may require parties and collaborative lawyers to
provide a status report on the collaborative family law process and
the proceeding. A status report may include only information on
whether the process is ongoing or concluded. It may not include a
report, assessment, evaluation, recommendation, finding, or other
communication regarding a collaborative family law process or
collaborative family law matter.
(g) A tribunal may not consider a communication made in
violation of subsection (f).
(h) A tribunal shall provide parties notice and an
opportunity to be heard before dismissing a proceeding based on
delay or failure to prosecute in which a notice of collaborative
family law process is filed.
Sec. 15.007. EMERGENCY ORDER. During a collaborative
family law process, a tribunal may issue emergency orders to
protect the health, safety, welfare, or interest of a party or
family as defined in Section 71.003, Family Code. If such orders are
granted without the agreement of all parties, the granting of the
orders shall terminate the collaborative process.
Sec. 15.008. EFFECT OF WRITTEN SETTLEMENT AGREEMENT.
(a) A settlement under this chapter is enforceable in the
same manner as written settlement agreement under Section 154.071
Civil Practice and Remedies Code.
(b) Notwithstanding Rule 11, Texas Rules of Civil
Procedure, or another rule or law, a party is entitled to judgment
on a collaborative family law settlement agreement if the
agreement:
(1) provides, in a prominently displayed statement
that is boldfaced, capitalized, or underlined, that the
agreement is not subject to revocation; and
(2) is signed by each party to the agreement and the
collaborative lawyer of each party.
Sec. 15.009. DISQUALIFICATION OF COLLABORATIVE LAWYER AND
LAWYERS IN ASSOCIATED LAW FIRM. (a) Except as otherwise provided in
subsection (c), a collaborative lawyer is disqualified from
appearing before a tribunal to represent a party in a proceeding
related to the collaborative matter.
(b) Except as otherwise provided in subsection (c) and Sec.
15.010 and Sec. 15.011, a lawyer in a law firm with which the
collaborative lawyer is associated is disqualified from appearing
before a tribunal to represent a party in a proceeding related to
the collaborative matter if the collaborative lawyer is
disqualified from doing so under subsection (a).
(c) A collaborative lawyer or a lawyer in a law firm with
which the collaborative lawyer is associated may represent a party:
(1) to ask a tribunal to approve an agreement
resulting from the collaborative family law process; or
(2)to seek or defend an emergency order to protect the
health, safety, welfare, or interest of a party or family as
defined in Section 71.003, Family Code, if a successor lawyer
is not immediately available to represent that person. In
that event, subsections (a) and (b) apply when the party is
represented by a successor lawyer or reasonable measures are
taken to protect the health, safety, welfare, or interest of
that person or family.
Sec. 15.010. LOW INCOME PARTIES. (a) The
disqualification of Sec. 15.009(a) applies to a
collaborative lawyer representing a party with or without
fee.
(b) After a collaborative family law process
concludes, another lawyer in a law firm with which a
collaborative lawyer disqualified under Sec. 15.009(a) is
associated may represent a party without fee in the
collaborative matter or a matter related to the collaborative
matter if:
(1) the party has an annual income that qualifies
the party for free legal representation under the
criteria established by the law firm for free legal
representation;
(2) the collaborative family law participation
agreement so provides; and
(3) the collaborative lawyer is isolated from any
participation in the collaborative matter or a matter
related to the collaborative matter through procedures
within the law firm which are reasonably calculated to
isolate the collaborative lawyer from such
participation.
Sec. 15.011. GOVERNMENTAL ENTITY AS PARTY. (a) The
disqualification of Sec. 15.009(a) applies to a collaborative
lawyer representing a party that is a government or governmental
subdivision, agency, or instrumentality.
(b) After a collaborative family law process concludes,
another lawyer in a law firm with which the collaborative lawyer is
associated may represent a government or governmental subdivision,
agency, or instrumentality in the collaborative matter or a matter
6 related to the collaborative matter if:
(1) the collaborative law participation agreement so
provides; and
(2) the collaborative lawyer is isolated from any
participation in the collaborative matter or a matter related
to the collaborative matter through procedures within the law
firm which are reasonably calculated to isolate the
collaborative lawyer from such participation.
Sec. 15.012. DISCLOSURE OF INFORMATION. Except as provided
by law other than this Chapter, during the collaborative family law
process, on the request of another party, a party shall make timely,
full, candid, and informal disclosure of information related to the
collaborative matter without formal discovery. A party also shall
update promptly previously disclosed information that has
materially changed. Parties may define the scope of disclosure
during the collaborative family law process.
Sec. 15.013. STANDARDS OF PROFESSIONAL RESPONSIBILITY AND
MANDATORY REPORTING NOT AFFECTED. This Chapter does not affect:
(a) the professional responsibility obligations and
standards applicable to a lawyer or other licensed professional; or
(b) the obligation of a person to report abuse or neglect,
abandonment, or exploitation of a child or adult under the law of
this state.
Sec. 15.014. INFORMED CONSENT. Before a prospective party
signs a collaborative family law participation agreement, a
prospective collaborative lawyer shall:
(a) assess with the prospective party factors the lawyer
reasonably believes relate to whether a collaborative family law
process is appropriate for the prospective party's matter;
(b) provide the prospective party with information that the
lawyer reasonably believes is sufficient for the party to make an
informed decision about the material benefits and risks of a
collaborative family law process as compared to the material
benefits and risks of other reasonably available alternatives for
resolving the proposed collaborative matter, such as litigation,
mediation, arbitration, or expert evaluation; and
(c) advise the prospective party that:
(1) after signing an agreement if a party initiates a
proceeding or seeks tribunal intervention in a pending
proceeding related to the collaborative matter, the
collaborative family law process terminates;
(2) participation in a collaborative family law
process is voluntary and any party has the right to
terminate unilaterally a collaborative family law
process with or without cause;
(c) the collaborative lawyer and any lawyer in a law
firm with which the collaborative lawyer is associated may
not appear before a tribunal to represent a party in a
proceeding related to the collaborative matter, except as
authorized by Sec. 15.009(c), 21 15.010(b), or 15.011(b).
Sec. 15.015. FAMILY VIOLENCE.(a) Before a prospective party
signs a collaborative family law participation agreement in a
collaborative matter in which another prospective party is a member
of the prospective party's family or household or with whom the
prospective party has or has had a dating relationship, a
prospective collaborative lawyer must make reasonable inquiry
whether the prospective party has a history of family violence as
defined by Section 71.004, Family Code, with another prospective
party.
(b) If a collaborative lawyer reasonably believes that the
party the lawyer represents or the prospective party who consults
the prospective lawyer has a history of family violence with
another party or prospective party, the lawyer may not begin or
continue a collaborative law process unless:
(1) the party or the prospective party requests
beginning or continuing a process;
(2) the collaborative lawyer or prospective
collaborative lawyer determines with the party or
prospective party what, if any, reasonable steps could
be taken to address the concerns regarding family
violence.
Sec. 15.016. CONFIDENTIALITY OF COLLABORATIVE FAMILY LAW
COMMUNICATION.(a) A collaborative family law communication is
confidential to the extent agreed by the parties in a signed record
or as provided by the law of this state other than this Chapter.
(b) If the parties agree in a signed record, the conduct and
demeanor of the parties and non-party participants, including their
collaborative lawyers, are confidential.
(c) If the parties agree in a signed record, communications
related to the collaborative matter occurring before the signing of
the collaborative family law participation agreement are
confidential.
Sec. 15.017. PRIVILEGE AGAINST DISCLOSURE OF COLLABORATIVE
FAMILY LAW COMMUNICATION.(a) Except as provided by section 15.018,
a collaborative family law communication, whether made before or
after the institution of a proceeding, is privileged, is not
subject to disclosure, and may not be used as evidence against a
party or non-party participant in a proceeding.
(b) Any record of a collaborative family law communication
is privileged, and neither the parties nor the non-party
participants may be required to testify in a proceeding related to
or arising out of the collaborative matter or be subject to process
requiring disclosure of privileged information or data related to
the collaborative matter.
(c) An oral communication or written material used in or
made a part of a collaborative family law process is admissible or
discoverable if it is admissible or discoverable independent of the
collaborative family law process.
(d) If this section conflicts with other legal requirements
for disclosure of communications, records, or materials, the issue
of privilege may be presented to the tribunal having jurisdiction
of the proceeding to determine, in camera, whether the facts,
circumstances, and context of the communications or materials
sought to be disclosed warrant a protective order of the tribunal or
whether the communications or materials are subject to disclosure.
(e) A party or non-party participant may disclose
privileged collaborative family law communications to a party's
successor counsel, subject to the terms of confidentiality in the
collaborative family law participation agreement, but such
collaborative family law communications shall remain privileged.
(f) A person that makes a disclosure or representation about
a collaborative family law communication which prejudices the
rights of a party or non-party participant in a proceeding may not
assert a privilege under the section, but this preclusion applies
only to the extent necessary for the person prejudiced to respond to
the disclosure or representation.
Sec. 15.018. LIMITS OF PRIVILEGE. (a) There is no privilege
under Sec. 15.017 for a collaborative family law communication that
is:
(1) in an agreement resulting from the collaborative
family law process, evidenced in a record signed by all
parties to the agreement;
(2) subject to an express waiver of the privilege
in a record or orally during a proceeding if the waiver
is made by all parties and non-party participants;
(3) available to the public under Chapter 552,
Government Code, or made during a session of a
collaborative family law process that is open, or is
required by law to be open, to the public;
(4) a threat or statement of a plan to inflict
bodily injury or commit a crime of violence;
(5) a disclosure of a plan to commit or attempt to
commit a crime, or conceal an ongoing crime or ongoing
criminal activity;
(6) a disclosure in a report of:
(A) suspected abuse or neglect of a child to
an appropriate agency under Subchapter B, Chapter
261, Family Code, or in a proceeding regarding the
abuse or neglect of a child, unless the Texas
Department of Family and Protective Services is a
party to or otherwise participates in the
collaborative family law process, except that
evidence may be excluded in the case of
communications between an attorney and client
under Subchapter C, Chapter 261, Family Code; or
(B) abuse, neglect, or exploitation of an elderly
or disabled person to an appropriate agency under
Subchapter B, Chapter 48, Human Resources Code,
unless the Texas Department of Family and
Protective Services is a party to or otherwise
participates in the collaborative family law
process;
(7) sought or offered to prove or disprove a claim or
complaint of professional misconduct or malpractice arising
from or related to a collaborative family law process;
(8) sought or offered to prove or disprove the
settlement agreement was procured by fraud, duress,
coercion, or other dishonest means, or that terms of the
settlement agreement are illegal;
(9) sought or offered to prove or disprove the
necessity and reasonableness of attorney fees and related
expenses incurred during a collaborative family law process
or to challenge or defend the enforceability of the
collaborative family law settlement agreement; and
(10) sought or offered to prove or disprove a claim
against a third person that did not participate in the
collaborative family law process.
(b) If a collaborative family law communication is subject
to an exception under subsection (a), only the part of the
communication necessary for the application of the exception may be
disclosed or admitted.
(c) Disclosure or admission of evidence excepted from the
privilege under subsection (a)does not make the evidence or any
other collaborative family law communication discoverable or
admissible for any other purpose.
Sec. 15.019. AUTHORITY OF TRIBUNAL IN CASE OF
NONCOMPLIANCE. (a) If an agreement fails to meet the
requirements of Sec. 15.004, or a lawyer fails to comply with
Sec. 15.014 or Sec. 15.015, a tribunal may nonetheless find
that the parties intended to enter into a collaborative
family law participation agreement if they:
(1) signed a record indicating an intention to enter
into a collaborative family law participation agreement; and
(2) reasonably believed they were participating in a
collaborative family law process.
(b) If a tribunal makes the findings specified in
subsection (a), and the interests of justice require, the
tribunal may:
(1)enforce an agreement evidenced by a record resulting
from the process in which the parties participated;
(2) apply the disqualification provisions of Sec.
15.005, Sec. 15.006, Sec, 15.009, Sec. 15.010, and Sec.
15.011; and
(3) apply the collaborative family law privilege under
Sec. 15.017.
Sec. 15.020. UNIFORMITY OF APPLICATION AND CONSTRUCTION.
In applying and construing this Chapter, consideration must be
given to the need to promote uniformity of the law with respect to
its subject matter among states that enact a collaborative law
process act.
Sec. 15.021. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND 18 NATIONAL COMMERCE ACT. This Chapter modifies, limits, and
supersedes the federal Electronic Signatures in Global and National
Commerce Act, 15 U.S.C.A. § 7001 et seq.(2009), but does not modify,
limit, or supersede section 101(c) of that act, 15 U.S.C.A. § 21
7001(c), or authorize electronic delivery of any of the notices
described in § 103(b) of that act, 15 U.S.C.A. § 7003(b).
SECTION 2. REPEALER. Sections 6.603 and 153.0072, Family
Code are repealed.
SECTION 3. SEVERABILITY. If any provision of this Chapter
or its application to any person or circumstance is held invalid,
the invalidity does not affect other provisions or applications of
this Chapter which can be given effect without the invalid
provision or application, and to this end the provisions of this
Chapter are severable.
SECTION 4. EFFECTIVE DATE. This Act takes effect September
1, 2011.