As Passed by the House

129th General Assembly
Regular Session
2011-2012
H. B. No. 461


Representative Stebelton 

Cosponsors: Representatives Adams, R., Gonzales, Grossman, Henne, McGregor, Okey, Yuko, Bubp, Antonio, Boyd, Celeste, Combs, Huffman, Letson, Milkovich, Murray, O'Brien, Pillich, Reece Speaker Batchelder 



A BILL
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


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       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 he hasthat spouse voluntarily entered 322
into the separation agreement appended to the petition, that he323
that spouse is satisfied with its terms, and that hethat spouse324
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