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To amend section 3105.64 and to enact sections | 1 |
3105.41, 3105.42, 3105.43, 3105.44, 3105.45, | 2 |
3105.46, 3105.47, 3105.48, 3105.49, 3105.50, | 3 |
3105.51, 3105.52, 3105.53, 3105.54, and 3105.55 of | 4 |
the Revised Code to establish a statutory | 5 |
collaborative family law process to aid in the | 6 |
resolution of family law disputes. | 7 |
Section 1. That section 3105.64 be amended and sections | 8 |
3105.41, 3105.42, 3105.43, 3105.44, 3105.45, 3105.46, 3105.47, | 9 |
3105.48, 3105.49, 3105.50, 3105.51, 3105.52, 3105.53, 3105.54, and | 10 |
3105.55 of the Revised Code be enacted to read as follows: | 11 |
Sec. 3105.41. As used in sections 3105.41 to 3105.55 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 but does | 28 |
not include a lawyer who is a public official and who does not | 29 |
represent individuals other than public officials in their | 30 |
official capacities. | 31 |
(E) "Collaborative matter" or "matter" means a dispute, | 32 |
transaction, claim, problem, or issue for resolution that arises | 33 |
under Title XXXI of the Revised Code and is described in a | 34 |
collaborative family law participation agreement. The term | 35 |
includes a dispute, claim, or issue in a proceeding. | 36 |
(F) "Family or household member" has the same meaning as in | 37 |
section 3113.31 of the Revised Code. | 38 |
(G) "Law firm" means an association of lawyers who practice | 39 |
law together in a partnership, professional corporation, sole | 40 |
proprietorship, limited liability company, or other association, | 41 |
lawyers employed in a legal services organization, the legal | 42 |
department of a corporation or other organization, or the legal | 43 |
department of a government or governmental subdivision, agency, or | 44 |
instrumentality. | 45 |
(H) "Nonparty participant" means a person, other than a party | 46 |
and the party's collaborative family lawyer, that the parties | 47 |
expressly designate in writing, in a collaborative family law | 48 |
participation agreement or an amendment to that agreement, to | 49 |
participate in a collaborative family law process. | 50 |
(I) "Party" means a person that signs a collaborative family | 51 |
law participation agreement and whose consent is necessary to | 52 |
resolve a matter. | 53 |
(J) "Person" means an individual, corporation, business | 54 |
trust, estate, trust, partnership, limited liability company, | 55 |
association, joint venture, public corporation, government or | 56 |
governmental subdivision, agency, or instrumentality, or any other | 57 |
legal or commercial entity. | 58 |
(K) "Proceeding" means a judicial, administrative, arbitral, | 59 |
or other adjudicative process before a court, including related | 60 |
prehearing and posthearing motions, conferences, and discovery. | 61 |
(L) "Public official" means an officer or employee of the | 62 |
state or any political subdivision of the state. | 63 |
(M) "Record" means information that is inscribed on a | 64 |
tangible medium or that is stored in an electronic or other medium | 65 |
and is retrievable in perceivable form. | 66 |
(N) "Related to a collaborative family law matter" or | 67 |
"related to a matter" means involving the same parties, | 68 |
transaction or occurrence, nucleus of operative fact, claim, | 69 |
issue, or dispute as a matter. | 70 |
(O) "Sign" means, with present intent to authenticate or | 71 |
adopt a record, to do either of the following: | 72 |
(1) Execute or adopt a tangible symbol; | 73 |
(2) Attach to or logically associate with the record an | 74 |
electronic symbol, sound, or process. | 75 |
Sec. 3105.42. (A) Sections 3105.41 to 3105.55 of the Revised | 76 |
Code apply to a collaborative family law participation agreement | 77 |
that meets the requirements of section 3105.43 of the Revised Code | 78 |
and is signed on or after the effective date of this section. | 79 |
(B) A court may not order a party to participate in a | 80 |
collaborative family law process over that party's objection. | 81 |
Sec. 3105.43. (A) A collaborative family law participation | 82 |
agreement must be in a record, be signed by the parties, and | 83 |
include all of the following: | 84 |
(1) A statement of the parties' intent to resolve a matter | 85 |
through a collaborative family law process under sections 3105.41 | 86 |
to 3105.55 of the Revised Code; | 87 |
(2) A description of the nature and scope of the matter; | 88 |
(3) The identity of the collaborative family lawyer who | 89 |
represents each party in the collaborative family law process; | 90 |
(4) A statement by each collaborative family lawyer | 91 |
confirming the lawyer's representation of a party in the | 92 |
collaborative family law process. | 93 |
(B) Parties to a collaborative family law participation | 94 |
agreement may agree to include additional provisions not | 95 |
inconsistent with sections 3105.41 to 3105.55 of the Revised Code. | 96 |
Sec. 3105.44. (A) A collaborative family law process begins | 97 |
when the parties sign a collaborative family law participation | 98 |
agreement. | 99 |
(B) A collaborative family law process is concluded by any of | 100 |
the following: | 101 |
(1) A negotiated resolution of the matter as evidenced by a | 102 |
signed record; | 103 |
(2) A negotiated resolution of a portion of the matter as | 104 |
evidenced by a signed record in which the parties agree that the | 105 |
remaining portions of the matter will not be resolved in the | 106 |
collaborative family law process; | 107 |
(3) Termination of the process under division (C) of this | 108 |
section. | 109 |
(C) A collaborative family law process terminates when any of | 110 |
the following occurs: | 111 |
(1) A party gives notice in a record that the collaborative | 112 |
family law process is ended. | 113 |
(2) A party does either of the following: | 114 |
(a) Begins a proceeding related to the collaborative family | 115 |
law matter without the agreement of all parties; | 116 |
(b) In a pending proceeding related to the collaborative | 117 |
family law matter, does any of the following: | 118 |
(i) Initiates a pleading, motion, order to show cause, or | 119 |
request for a conference with the court; | 120 |
(ii) Requests that the proceeding be put on the court's | 121 |
docket; | 122 |
(iii) Takes similar action requiring notice to be sent to the | 123 |
parties; | 124 |
(iv) Except as otherwise provided by division (E)(2) of this | 125 |
section, discharges a collaborative family lawyer. | 126 |
(3) A collaborative family lawyer withdraws from further | 127 |
representation of a party. | 128 |
(4) Termination occurs in any other way provided for in the | 129 |
collaborative family law participation agreement. | 130 |
(D) A party may terminate a collaborative family law process | 131 |
with or without cause. A notice of termination need not specify a | 132 |
reason for terminating the process. | 133 |
(E)(1) A collaborative family lawyer who is discharged or who | 134 |
withdraws shall give prompt notice in a record of the discharge or | 135 |
withdrawal to all other parties. | 136 |
(2) Notwithstanding the discharge or withdrawal of a | 137 |
collaborative family lawyer, a collaborative family law process | 138 |
continues if the unrepresented party engages a successor | 139 |
collaborative family lawyer, and, in a signed record, all parties | 140 |
consent to continue the process by reaffirming the collaborative | 141 |
family law participation agreement, the collaborative family law | 142 |
participation agreement is amended to identify the successor | 143 |
collaborative family lawyer, and the successor collaborative | 144 |
family lawyer confirms the lawyer's representation of a party in | 145 |
the collaborative family law process. | 146 |
(F) A collaborative family law process does not terminate if, | 147 |
with the consent of all parties, a party requests a court to | 148 |
approve a negotiated resolution of the matter or any portion of | 149 |
the matter as evidenced by a signed record. | 150 |
Sec. 3105.45. (A) Parties to a proceeding pending before a | 151 |
court may sign a collaborative family law participation agreement | 152 |
to seek to resolve a matter related to the proceeding. Parties | 153 |
shall promptly file a notice of the agreement with the court after | 154 |
the collaborative family law participation agreement is signed. | 155 |
Subject to division (C) of this section, the filing operates as a | 156 |
stay of the proceeding. | 157 |
(B) Parties shall promptly file a notice of termination in a | 158 |
record with the court when a collaborative family law process | 159 |
terminates. The stay of the proceeding under division (A) of this | 160 |
section is lifted when the notice is filed with the court. The | 161 |
notice may not specify any reason for the termination. | 162 |
(C) A court may require parties and collaborative family | 163 |
lawyers to provide status reports on the proceeding. A status | 164 |
report may not include a report, assessment, evaluation, | 165 |
recommendation, finding, or other communication regarding a | 166 |
collaborative family law process, except that a court may require | 167 |
parties and lawyers to disclose in a status report whether the | 168 |
process is ongoing or concluded. | 169 |
A communication made in violation of this division may not be | 170 |
considered by a court. | 171 |
Sec. 3105.46. (A) Except as otherwise provided in division | 172 |
(C) of this section, a collaborative family lawyer may not appear | 173 |
before a court to represent a party in a proceeding related to the | 174 |
collaborative family law matter. A collaborative family lawyer | 175 |
representing a party that is a government or governmental | 176 |
subdivision, agency, or instrumentality is subject to | 177 |
disqualification under this division. | 178 |
(B) Except as otherwise provided in division (C) of this | 179 |
section, a lawyer in a law firm with which the collaborative | 180 |
family lawyer is associated may not appear before a court to | 181 |
represent a party in a proceeding related to the collaborative | 182 |
family law matter if the collaborative family lawyer is | 183 |
disqualified from doing so under division (A) of this section. | 184 |
(C) A collaborative family lawyer or a lawyer in a law firm | 185 |
with which the collaborative family lawyer is associated may | 186 |
represent a party for the following purposes: | 187 |
(1) To ask a court to approve an agreement resulting from the | 188 |
collaborative family law process; | 189 |
(2) To seek or defend an emergency order to protect the | 190 |
health, safety, welfare, or interests of a party or of a family or | 191 |
household member of a party if a successor lawyer is not | 192 |
immediately available to represent the party or family or | 193 |
household member of the party. If a successor lawyer is not | 194 |
immediately available to represent the party or family or | 195 |
household member of the party, divisions (A) and (B) of this | 196 |
section do not apply until a successor lawyer assumes | 197 |
representation of the party or family or household member of the | 198 |
party or reasonable measures are taken to protect the health, | 199 |
safety, welfare, or interests of the party or family or household | 200 |
member of the party. | 201 |
Sec. 3105.47. During the collaborative family law process, | 202 |
at the request of another party, a party shall make timely, full, | 203 |
candid, and informal disclosure of information related to the | 204 |
collaborative matter without formal discovery and shall update | 205 |
promptly information that has materially changed. Parties may | 206 |
define the scope of disclosure, except as otherwise provided by | 207 |
law. | 208 |
Sec. 3105.48. Sections 3105.41 to 3105.55 of the Revised | 209 |
Code do not affect the professional responsibility obligations and | 210 |
standards applicable to a lawyer or other licensed professional or | 211 |
the statutory obligation of a person to report abuse or neglect of | 212 |
a child or adult. | 213 |
Sec. 3105.49. A collaborative family law communication is | 214 |
confidential to the extent agreed by the parties in a signed | 215 |
record or as provided by the law of this state. | 216 |
Sec. 3105.50. (A) Subject to sections 3105.51 and 3105.52 of | 217 |
the Revised Code, a collaborative family law communication is | 218 |
privileged under division (B) of this section, is not subject to | 219 |
discovery, and is not admissible in evidence. | 220 |
(B) In a proceeding, the following privileges apply: | 221 |
(1) A party may refuse to disclose, and may prevent any other | 222 |
person from disclosing, a collaborative family law communication. | 223 |
(2) A nonparty participant may refuse to disclose, and may | 224 |
prevent any other person from disclosing, a collaborative family | 225 |
law communication of the nonparty participant. | 226 |
(C) Evidence or information that is otherwise admissible or | 227 |
subject to discovery does not become inadmissible or protected | 228 |
from discovery solely by reason of its disclosure or use in a | 229 |
collaborative family law process. | 230 |
Sec. 3105.51. (A) A privilege under section 3105.50 of the | 231 |
Revised Code may be waived in a record or orally during a | 232 |
proceeding if it is expressly waived by all parties and, in the | 233 |
case of the privilege of a nonparty participant, it is also | 234 |
expressly waived by the nonparty participant. | 235 |
(B) A person that discloses or makes a representation about a | 236 |
collaborative family law communication that prejudices another | 237 |
person in a proceeding may not assert a privilege under section | 238 |
3105.50 of the Revised Code relating to that communication. | 239 |
Sec. 3105.52. (A) There is no privilege under section | 240 |
3105.50 of the Revised Code for a collaborative family law | 241 |
communication that is any of the following: | 242 |
(1) Available to the public under section 149.43 of the | 243 |
Revised Code or made during a session of a collaborative family | 244 |
law process that is open, or is required by law to be open, to the | 245 |
public; | 246 |
(2) A threat or statement of a plan to inflict bodily injury | 247 |
or commit a crime of violence; | 248 |
(3) Intentionally used to plan a crime, commit or attempt to | 249 |
commit a crime, or conceal an ongoing crime or ongoing criminal | 250 |
activity; | 251 |
(4) In an agreement resulting from the collaborative family | 252 |
law process, evidenced by a record signed by all parties to the | 253 |
agreement. | 254 |
(B) The privileges under section 3105.50 of the Revised Code | 255 |
for a collaborative family law communication do not apply to the | 256 |
extent that a communication is either of the following: | 257 |
(1) Sought or offered to prove or disprove a claim or | 258 |
complaint of professional misconduct or malpractice arising from | 259 |
or related to a collaborative family law process; | 260 |
(2) Sought or offered to prove or disprove abuse, neglect, | 261 |
abandonment, or exploitation of a child, unless a children's or | 262 |
protective service agency or an adult protective services agency | 263 |
is a party to or otherwise participates in the collaborative | 264 |
family law process. | 265 |
(C) There is no privilege under section 3105.50 of the | 266 |
Revised Code if the communication is sought in connection with or | 267 |
offered in any criminal proceeding involving a felony, a | 268 |
delinquent child proceeding based on what would be a felony if | 269 |
committed by an adult, or a proceeding initiated by the state or a | 270 |
child protection agency in which it is alleged that a child is an | 271 |
abused, neglected, or dependent child. | 272 |
(D) There is no privilege under section 3105.50 of the | 273 |
Revised Code if a court finds, after a hearing in camera, that the | 274 |
party seeking discovery or the proponent of the evidence has shown | 275 |
that the evidence is not otherwise available, the need for the | 276 |
evidence substantially outweighs the interest in protecting | 277 |
confidentiality, and the collaborative family law communication is | 278 |
sought or offered in a criminal action or in a proceeding seeking | 279 |
rescission or reformation of a contract arising out of the | 280 |
collaborative family law process or in which a defense to avoid | 281 |
liability on the contract is asserted. | 282 |
(E) If a collaborative family law communication is subject to | 283 |
an exception under division (B), (C), or (D) of this section, only | 284 |
the portion of the communication necessary for the application of | 285 |
the exception may be disclosed or admitted. | 286 |
(F) Disclosure or admission of evidence excepted from the | 287 |
privilege under division (B), (C), or (D) of this section does not | 288 |
render the evidence or any other collaborative family law | 289 |
communication discoverable or admissible for any other purpose. | 290 |
(G) The privileges under section 3105.50 of the Revised Code | 291 |
do not apply if the parties agree in advance in a signed record, | 292 |
or if a record of a proceeding reflects agreement by the parties, | 293 |
that all or part of a collaborative family law process is not | 294 |
privileged. This division does not apply to a collaborative family | 295 |
law communication made by a person that did not receive actual | 296 |
notice of the agreement before the communication was made. | 297 |
Sec. 3105.53. Even though a collaborative family law | 298 |
participation agreement fails to meet the requirements of section | 299 |
3105.43 of the Revised Code, a court may find that the parties | 300 |
intended to enter into a collaborative family law participation | 301 |
agreement if the parties signed a record indicating an intention | 302 |
to enter into a collaborative family law participation agreement | 303 |
and the parties reasonably believed they were participating in a | 304 |
collaborative family law process. If a court makes such a finding, | 305 |
sections 3105.41 to 3105.55 of the Revised Code apply to the same | 306 |
extent as if the parties had entered into a valid collaborative | 307 |
family law participation agreement. | 308 |
Sec. 3105.54. Sections 3105.41 to 3105.55 of the Revised | 309 |
Code modify, limit, and supersede the "Electronic Signatures in | 310 |
Global and National Commerce Act," 114 Stat. 464, 15 U.S.C. 7001, | 311 |
et seq., but do not modify, limit, or supersede section 101(c) of | 312 |
that act, 15 U.S.C. 7001(c), or authorize electronic delivery of | 313 |
any of the notices described in section 103(b) of that act, 15 | 314 |
U.S.C. 7003(b). | 315 |
Sec. 3105.55. Sections 3105.41 to 3105.55 of the Revised | 316 |
Code may be cited as the "Ohio collaborative family law act." | 317 |
Sec. 3105.64. (A) Except as provided in division (B) or (C) | 318 |
of this section, not less than thirty nor more than ninety days | 319 |
after the filing of a petition for dissolution of marriage, both | 320 |
spouses shall appear before the court, and each spouse shall | 321 |
acknowledge under oath that | 322 |
into the separation agreement appended to the petition, that | 323 |
that spouse is satisfied with its terms, and that | 324 |
seeks dissolution of the marriage. | 325 |
(B) If an action for divorce is converted to an action for | 326 |
dissolution of marriage pursuant to section 3105.08 of the Revised | 327 |
Code and if the conversion occurs more than thirty days after the | 328 |
filing of the original petition in the divorce action, the | 329 |
appearance and acknowledgement requirements of division (A) of | 330 |
this section may be satisfied at the time of the conversion or at | 331 |
a time that is not more than ninety days after the conversion. | 332 |
(C) If a petition for dissolution is filed after the spouses | 333 |
have successfully completed a collaborative family law process | 334 |
pursuant to sections 3105.41 to 3105.55 of the Revised Code, the | 335 |
appearance and acknowledgement requirements of division (A) of | 336 |
this section may be satisfied at any time that is not more than | 337 |
ninety days after the filing of the petition. | 338 |
Section 2. That existing section 3105.64 of the Revised Code | 339 |
is hereby repealed. | 340 |