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Am. Sub. H. B. No. 461 As Passed by the SenateAs Passed by the Senate
129th General Assembly | Regular Session | 2011-2012 |
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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
Senators Wagoner, Skindell, Obhof, Oelslager, Bacon, Turner, Balderson, Burke, Coley, Eklund, Hite, Hughes, Jones, Kearney, Lehner, Manning, Patton, Peterson, Seitz
A BILL
To amend sections 2317.02, 3105.18, and 3105.64 and
to enact sections 3105.41, 3105.42, 3105.43,
3105.44, 3105.45, 3105.46, 3105.47, 3105.48,
3105.49, 3105.50, 3105.51, 3105.52, 3105.53, and
3105.54 of the Revised Code to establish a
statutory collaborative family law process to aid
in the resolution of family law disputes, to
clarify when an order of spousal support may be
modified, and to clarify the circumstances under
which a client's statements may compel an attorney
to testify regarding attorney-client
communications.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2317.02, 3105.18, and 3105.64 be
amended and sections 3105.41, 3105.42, 3105.43, 3105.44, 3105.45,
3105.46, 3105.47, 3105.48, 3105.49, 3105.50, 3105.51, 3105.52,
3105.53, and 3105.54 of the Revised Code be enacted to read as
follows:
Sec. 2317.02. The following persons shall not testify in
certain respects:
(A)(1) An attorney, concerning a communication made to the
attorney by a client in that relation or concerning the attorney's
advice to a client, except that the attorney may testify by
express consent of the client or, if the client is deceased, by
the express consent of the surviving spouse or the executor or
administrator of the estate of the deceased client. However, if
the client voluntarily testifies reveals the substance of
attorney-client communications in a nonprivileged context or is
deemed by section 2151.421 of the Revised Code to have waived any
testimonial privilege under this division, the attorney may be
compelled to testify on the same subject.
The testimonial privilege established under this division
does not apply concerning a communication between a client who has
since died and the deceased client's attorney if the communication
is relevant to a dispute between parties who claim through that
deceased client, regardless of whether the claims are by testate
or intestate succession or by inter vivos transaction, and the
dispute addresses the competency of the deceased client when the
deceased client executed a document that is the basis of the
dispute or whether the deceased client was a victim of fraud,
undue influence, or duress when the deceased client executed a
document that is the basis of the dispute.
(2) An attorney, concerning a communication made to the
attorney by a client in that relationship or the attorney's advice
to a client, except that if the client is an insurance company,
the attorney may be compelled to testify, subject to an in camera
inspection by a court, about communications made by the client to
the attorney or by the attorney to the client that are related to
the attorney's aiding or furthering an ongoing or future
commission of bad faith by the client, if the party seeking
disclosure of the communications has made a prima-facie showing of
bad faith, fraud, or criminal misconduct by the client.
(B)(1) A physician or a dentist concerning a communication
made to the physician or dentist by a patient in that relation or
the physician's or dentist's advice to a patient, except as
otherwise provided in this division, division (B)(2), and division
(B)(3) of this section, and except that, if the patient is deemed
by section 2151.421 of the Revised Code to have waived any
testimonial privilege under this division, the physician may be
compelled to testify on the same subject.
The testimonial privilege established under this division
does not apply, and a physician or dentist may testify or may be
compelled to testify, in any of the following circumstances:
(a) In any civil action, in accordance with the discovery
provisions of the Rules of Civil Procedure in connection with a
civil action, or in connection with a claim under Chapter 4123. of
the Revised Code, under any of the following circumstances:
(i) If the patient or the guardian or other legal
representative of the patient gives express consent;
(ii) If the patient is deceased, the spouse of the patient or
the executor or administrator of the patient's estate gives
express consent;
(iii) If a medical claim, dental claim, chiropractic claim,
or optometric claim, as defined in section 2305.113 of the Revised
Code, an action for wrongful death, any other type of civil
action, or a claim under Chapter 4123. of the Revised Code is
filed by the patient, the personal representative of the estate of
the patient if deceased, or the patient's guardian or other legal
representative.
(b) In any civil action concerning court-ordered treatment or
services received by a patient, if the court-ordered treatment or
services were ordered as part of a case plan journalized under
section 2151.412 of the Revised Code or the court-ordered
treatment or services are necessary or relevant to dependency,
neglect, or abuse or temporary or permanent custody proceedings
under Chapter 2151. of the Revised Code.
(c) In any criminal action concerning any test or the results
of any test that determines the presence or concentration of
alcohol, a drug of abuse, a combination of them, a controlled
substance, or a metabolite of a controlled substance in the
patient's whole blood, blood serum or plasma, breath, urine, or
other bodily substance at any time relevant to the criminal
offense in question.
(d) In any criminal action against a physician or dentist. In
such an action, the testimonial privilege established under this
division does not prohibit the admission into evidence, in
accordance with the Rules of Evidence, of a patient's medical or
dental records or other communications between a patient and the
physician or dentist that are related to the action and obtained
by subpoena, search warrant, or other lawful means. A court that
permits or compels a physician or dentist to testify in such an
action or permits the introduction into evidence of patient
records or other communications in such an action shall require
that appropriate measures be taken to ensure that the
confidentiality of any patient named or otherwise identified in
the records is maintained. Measures to ensure confidentiality that
may be taken by the court include sealing its records or deleting
specific information from its records.
(e)(i) If the communication was between a patient who has
since died and the deceased patient's physician or dentist, the
communication is relevant to a dispute between parties who claim
through that deceased patient, regardless of whether the claims
are by testate or intestate succession or by inter vivos
transaction, and the dispute addresses the competency of the
deceased patient when the deceased patient executed a document
that is the basis of the dispute or whether the deceased patient
was a victim of fraud, undue influence, or duress when the
deceased patient executed a document that is the basis of the
dispute.
(ii) If neither the spouse of a patient nor the executor or
administrator of that patient's estate gives consent under
division (B)(1)(a)(ii) of this section, testimony or the
disclosure of the patient's medical records by a physician,
dentist, or other health care provider under division (B)(1)(e)(i)
of this section is a permitted use or disclosure of protected
health information, as defined in 45 C.F.R. 160.103, and an
authorization or opportunity to be heard shall not be required.
(iii) Division (B)(1)(e)(i) of this section does not require
a mental health professional to disclose psychotherapy notes, as
defined in 45 C.F.R. 164.501.
(iv) An interested person who objects to testimony or
disclosure under division (B)(1)(e)(i) of this section may seek a
protective order pursuant to Civil Rule 26.
(v) A person to whom protected health information is
disclosed under division (B)(1)(e)(i) of this section shall not
use or disclose the protected health information for any purpose
other than the litigation or proceeding for which the information
was requested and shall return the protected health information to
the covered entity or destroy the protected health information,
including all copies made, at the conclusion of the litigation or
proceeding.
(2)(a) If any law enforcement officer submits a written
statement to a health care provider that states that an official
criminal investigation has begun regarding a specified person or
that a criminal action or proceeding has been commenced against a
specified person, that requests the provider to supply to the
officer copies of any records the provider possesses that pertain
to any test or the results of any test administered to the
specified person to determine the presence or concentration of
alcohol, a drug of abuse, a combination of them, a controlled
substance, or a metabolite of a controlled substance in the
person's whole blood, blood serum or plasma, breath, or urine at
any time relevant to the criminal offense in question, and that
conforms to section 2317.022 of the Revised Code, the provider,
except to the extent specifically prohibited by any law of this
state or of the United States, shall supply to the officer a copy
of any of the requested records the provider possesses. If the
health care provider does not possess any of the requested
records, the provider shall give the officer a written statement
that indicates that the provider does not possess any of the
requested records.
(b) If a health care provider possesses any records of the
type described in division (B)(2)(a) of this section regarding the
person in question at any time relevant to the criminal offense in
question, in lieu of personally testifying as to the results of
the test in question, the custodian of the records may submit a
certified copy of the records, and, upon its submission, the
certified copy is qualified as authentic evidence and may be
admitted as evidence in accordance with the Rules of Evidence.
Division (A) of section 2317.422 of the Revised Code does not
apply to any certified copy of records submitted in accordance
with this division. Nothing in this division shall be construed to
limit the right of any party to call as a witness the person who
administered the test to which the records pertain, the person
under whose supervision the test was administered, the custodian
of the records, the person who made the records, or the person
under whose supervision the records were made.
(3)(a) If the testimonial privilege described in division
(B)(1) of this section does not apply as provided in division
(B)(1)(a)(iii) of this section, a physician or dentist may be
compelled to testify or to submit to discovery under the Rules of
Civil Procedure only as to a communication made to the physician
or dentist by the patient in question in that relation, or the
physician's or dentist's advice to the patient in question, that
related causally or historically to physical or mental injuries
that are relevant to issues in the medical claim, dental claim,
chiropractic claim, or optometric claim, action for wrongful
death, other civil action, or claim under Chapter 4123. of the
Revised Code.
(b) If the testimonial privilege described in division (B)(1)
of this section does not apply to a physician or dentist as
provided in division (B)(1)(c) of this section, the physician or
dentist, in lieu of personally testifying as to the results of the
test in question, may submit a certified copy of those results,
and, upon its submission, the certified copy is qualified as
authentic evidence and may be admitted as evidence in accordance
with the Rules of Evidence. Division (A) of section 2317.422 of
the Revised Code does not apply to any certified copy of results
submitted in accordance with this division. Nothing in this
division shall be construed to limit the right of any party to
call as a witness the person who administered the test in
question, the person under whose supervision the test was
administered, the custodian of the results of the test, the person
who compiled the results, or the person under whose supervision
the results were compiled.
(4) The testimonial privilege described in division (B)(1) of
this section is not waived when a communication is made by a
physician to a pharmacist or when there is communication between a
patient and a pharmacist in furtherance of the physician-patient
relation.
(5)(a) As used in divisions (B)(1) to (4) of this section,
"communication" means acquiring, recording, or transmitting any
information, in any manner, concerning any facts, opinions, or
statements necessary to enable a physician or dentist to diagnose,
treat, prescribe, or act for a patient. A "communication" may
include, but is not limited to, any medical or dental, office, or
hospital communication such as a record, chart, letter,
memorandum, laboratory test and results, x-ray, photograph,
financial statement, diagnosis, or prognosis.
(b) As used in division (B)(2) of this section, "health care
provider" means a hospital, ambulatory care facility, long-term
care facility, pharmacy, emergency facility, or health care
practitioner.
(c) As used in division (B)(5)(b) of this section:
(i) "Ambulatory care facility" means a facility that provides
medical, diagnostic, or surgical treatment to patients who do not
require hospitalization, including a dialysis center, ambulatory
surgical facility, cardiac catheterization facility, diagnostic
imaging center, extracorporeal shock wave lithotripsy center, home
health agency, inpatient hospice, birthing center, radiation
therapy center, emergency facility, and an urgent care center.
"Ambulatory health care facility" does not include the private
office of a physician or dentist, whether the office is for an
individual or group practice.
(ii) "Emergency facility" means a hospital emergency
department or any other facility that provides emergency medical
services.
(iii) "Health care practitioner" has the same meaning as in
section 4769.01 of the Revised Code.
(iv) "Hospital" has the same meaning as in section 3727.01 of
the Revised Code.
(v) "Long-term care facility" means a nursing home,
residential care facility, or home for the aging, as those terms
are defined in section 3721.01 of the Revised Code; a residential
facility licensed under section 5119.22 of the Revised Code that
provides accommodations, supervision, and personal care services
for three to sixteen unrelated adults; a nursing facility or
intermediate care facility for the mentally retarded, as those
terms are defined in section 5111.20 of the Revised Code; a
facility or portion of a facility certified as a skilled nursing
facility under Title XVIII of the "Social Security Act," 49 Stat.
286 (1965), 42 U.S.C.A. 1395, as amended.
(vi) "Pharmacy" has the same meaning as in section 4729.01 of
the Revised Code.
(d) As used in divisions (B)(1) and (2) of this section,
"drug of abuse" has the same meaning as in section 4506.01 of the
Revised Code.
(6) Divisions (B)(1), (2), (3), (4), and (5) of this section
apply to doctors of medicine, doctors of osteopathic medicine,
doctors of podiatry, and dentists.
(7) Nothing in divisions (B)(1) to (6) of this section
affects, or shall be construed as affecting, the immunity from
civil liability conferred by section 307.628 of the Revised Code
or the immunity from civil liability conferred by section 2305.33
of the Revised Code upon physicians who report an employee's use
of a drug of abuse, or a condition of an employee other than one
involving the use of a drug of abuse, to the employer of the
employee in accordance with division (B) of that section. As used
in division (B)(7) of this section, "employee," "employer," and
"physician" have the same meanings as in section 2305.33 of the
Revised Code.
(C)(1) A cleric, when the cleric remains accountable to the
authority of that cleric's church, denomination, or sect,
concerning a confession made, or any information confidentially
communicated, to the cleric for a religious counseling purpose in
the cleric's professional character. The cleric may testify by
express consent of the person making the communication, except
when the disclosure of the information is in violation of a sacred
trust and except that, if the person voluntarily testifies or is
deemed by division (A)(4)(c) of section 2151.421 of the Revised
Code to have waived any testimonial privilege under this division,
the cleric may be compelled to testify on the same subject except
when disclosure of the information is in violation of a sacred
trust.
(2) As used in division (C) of this section:
(a) "Cleric" means a member of the clergy, rabbi, priest,
Christian Science practitioner, or regularly ordained, accredited,
or licensed minister of an established and legally cognizable
church, denomination, or sect.
(b) "Sacred trust" means a confession or confidential
communication made to a cleric in the cleric's ecclesiastical
capacity in the course of discipline enjoined by the church to
which the cleric belongs, including, but not limited to, the
Catholic Church, if both of the following apply:
(i) The confession or confidential communication was made
directly to the cleric.
(ii) The confession or confidential communication was made in
the manner and context that places the cleric specifically and
strictly under a level of confidentiality that is considered
inviolate by canon law or church doctrine.
(D) Husband or wife, concerning any communication made by one
to the other, or an act done by either in the presence of the
other, during coverture, unless the communication was made, or act
done, in the known presence or hearing of a third person competent
to be a witness; and such rule is the same if the marital relation
has ceased to exist;
(E) A person who assigns a claim or interest, concerning any
matter in respect to which the person would not, if a party, be
permitted to testify;
(F) A person who, if a party, would be restricted under
section 2317.03 of the Revised Code, when the property or thing is
sold or transferred by an executor, administrator, guardian,
trustee, heir, devisee, or legatee, shall be restricted in the
same manner in any action or proceeding concerning the property or
thing.
(G)(1) A school guidance counselor who holds a valid educator
license from the state board of education as provided for in
section 3319.22 of the Revised Code, a person licensed under
Chapter 4757. of the Revised Code as a professional clinical
counselor, professional counselor, social worker, independent
social worker, marriage and family therapist or independent
marriage and family therapist, or registered under Chapter 4757.
of the Revised Code as a social work assistant concerning a
confidential communication received from a client in that relation
or the person's advice to a client unless any of the following
applies:
(a) The communication or advice indicates clear and present
danger to the client or other persons. For the purposes of this
division, cases in which there are indications of present or past
child abuse or neglect of the client constitute a clear and
present danger.
(b) The client gives express consent to the testimony.
(c) If the client is deceased, the surviving spouse or the
executor or administrator of the estate of the deceased client
gives express consent.
(d) The client voluntarily testifies, in which case the
school guidance counselor or person licensed or registered under
Chapter 4757. of the Revised Code may be compelled to testify on
the same subject.
(e) The court in camera determines that the information
communicated by the client is not germane to the counselor-client,
marriage and family therapist-client, or social worker-client
relationship.
(f) A court, in an action brought against a school, its
administration, or any of its personnel by the client, rules after
an in-camera inspection that the testimony of the school guidance
counselor is relevant to that action.
(g) The testimony is sought in a civil action and concerns
court-ordered treatment or services received by a patient as part
of a case plan journalized under section 2151.412 of the Revised
Code or the court-ordered treatment or services are necessary or
relevant to dependency, neglect, or abuse or temporary or
permanent custody proceedings under Chapter 2151. of the Revised
Code.
(2) Nothing in division (G)(1) of this section shall relieve
a school guidance counselor or a person licensed or registered
under Chapter 4757. of the Revised Code from the requirement to
report information concerning child abuse or neglect under section
2151.421 of the Revised Code.
(H) A mediator acting under a mediation order issued under
division (A) of section 3109.052 of the Revised Code or otherwise
issued in any proceeding for divorce, dissolution, legal
separation, annulment, or the allocation of parental rights and
responsibilities for the care of children, in any action or
proceeding, other than a criminal, delinquency, child abuse, child
neglect, or dependent child action or proceeding, that is brought
by or against either parent who takes part in mediation in
accordance with the order and that pertains to the mediation
process, to any information discussed or presented in the
mediation process, to the allocation of parental rights and
responsibilities for the care of the parents' children, or to the
awarding of parenting time rights in relation to their children;
(I) A communications assistant, acting within the scope of
the communication assistant's authority, when providing
telecommunications relay service pursuant to section 4931.06 of
the Revised Code or Title II of the "Communications Act of 1934,"
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication
made through a telecommunications relay service. Nothing in this
section shall limit the obligation of a communications assistant
to divulge information or testify when mandated by federal law or
regulation or pursuant to subpoena in a criminal proceeding.
Nothing in this section shall limit any immunity or privilege
granted under federal law or regulation.
(J)(1) A chiropractor in a civil proceeding concerning a
communication made to the chiropractor by a patient in that
relation or the chiropractor's advice to a patient, except as
otherwise provided in this division. The testimonial privilege
established under this division does not apply, and a chiropractor
may testify or may be compelled to testify, in any civil action,
in accordance with the discovery provisions of the Rules of Civil
Procedure in connection with a civil action, or in connection with
a claim under Chapter 4123. of the Revised Code, under any of the
following circumstances:
(a) If the patient or the guardian or other legal
representative of the patient gives express consent.
(b) If the patient is deceased, the spouse of the patient or
the executor or administrator of the patient's estate gives
express consent.
(c) If a medical claim, dental claim, chiropractic claim, or
optometric claim, as defined in section 2305.113 of the Revised
Code, an action for wrongful death, any other type of civil
action, or a claim under Chapter 4123. of the Revised Code is
filed by the patient, the personal representative of the estate of
the patient if deceased, or the patient's guardian or other legal
representative.
(2) If the testimonial privilege described in division (J)(1)
of this section does not apply as provided in division (J)(1)(c)
of this section, a chiropractor may be compelled to testify or to
submit to discovery under the Rules of Civil Procedure only as to
a communication made to the chiropractor by the patient in
question in that relation, or the chiropractor's advice to the
patient in question, that related causally or historically to
physical or mental injuries that are relevant to issues in the
medical claim, dental claim, chiropractic claim, or optometric
claim, action for wrongful death, other civil action, or claim
under Chapter 4123. of the Revised Code.
(3) The testimonial privilege established under this division
does not apply, and a chiropractor may testify or be compelled to
testify, in any criminal action or administrative proceeding.
(4) As used in this division, "communication" means
acquiring, recording, or transmitting any information, in any
manner, concerning any facts, opinions, or statements necessary to
enable a chiropractor to diagnose, treat, or act for a patient. A
communication may include, but is not limited to, any
chiropractic, office, or hospital communication such as a record,
chart, letter, memorandum, laboratory test and results, x-ray,
photograph, financial statement, diagnosis, or prognosis.
(K)(1) Except as provided under division (K)(2) of this
section, a critical incident stress management team member
concerning a communication received from an individual who
receives crisis response services from the team member, or the
team member's advice to the individual, during a debriefing
session.
(2) The testimonial privilege established under division
(K)(1) of this section does not apply if any of the following are
true:
(a) The communication or advice indicates clear and present
danger to the individual who receives crisis response services or
to other persons. For purposes of this division, cases in which
there are indications of present or past child abuse or neglect of
the individual constitute a clear and present danger.
(b) The individual who received crisis response services
gives express consent to the testimony.
(c) If the individual who received crisis response services
is deceased, the surviving spouse or the executor or administrator
of the estate of the deceased individual gives express consent.
(d) The individual who received crisis response services
voluntarily testifies, in which case the team member may be
compelled to testify on the same subject.
(e) The court in camera determines that the information
communicated by the individual who received crisis response
services is not germane to the relationship between the individual
and the team member.
(f) The communication or advice pertains or is related to any
criminal act.
(3) As used in division (K) of this section:
(a) "Crisis response services" means consultation, risk
assessment, referral, and on-site crisis intervention services
provided by a critical incident stress management team to
individuals affected by crisis or disaster.
(b) "Critical incident stress management team member" or
"team member" means an individual specially trained to provide
crisis response services as a member of an organized community or
local crisis response team that holds membership in the Ohio
critical incident stress management network.
(c) "Debriefing session" means a session at which crisis
response services are rendered by a critical incident stress
management team member during or after a crisis or disaster.
(L)(1) Subject to division (L)(2) of this section and except
as provided in division (L)(3) of this section, an employee
assistance professional, concerning a communication made to the
employee assistance professional by a client in the employee
assistance professional's official capacity as an employee
assistance professional.
(2) Division (L)(1) of this section applies to an employee
assistance professional who meets either or both of the following
requirements:
(a) Is certified by the employee assistance certification
commission to engage in the employee assistance profession;
(b) Has education, training, and experience in all of the
following:
(i) Providing workplace-based services designed to address
employer and employee productivity issues;
(ii) Providing assistance to employees and employees'
dependents in identifying and finding the means to resolve
personal problems that affect the employees or the employees'
performance;
(iii) Identifying and resolving productivity problems
associated with an employee's concerns about any of the following
matters: health, marriage, family, finances, substance abuse or
other addiction, workplace, law, and emotional issues;
(iv) Selecting and evaluating available community resources;
(v) Making appropriate referrals;
(vi) Local and national employee assistance agreements;
(vii) Client confidentiality.
(3) Division (L)(1) of this section does not apply to any of
the following:
(a) A criminal action or proceeding involving an offense
under sections 2903.01 to 2903.06 of the Revised Code if the
employee assistance professional's disclosure or testimony relates
directly to the facts or immediate circumstances of the offense;
(b) A communication made by a client to an employee
assistance professional that reveals the contemplation or
commission of a crime or serious, harmful act;
(c) A communication that is made by a client who is an
unemancipated minor or an adult adjudicated to be incompetent and
indicates that the client was the victim of a crime or abuse;
(d) A civil proceeding to determine an individual's mental
competency or a criminal action in which a plea of not guilty by
reason of insanity is entered;
(e) A civil or criminal malpractice action brought against
the employee assistance professional;
(f) When the employee assistance professional has the express
consent of the client or, if the client is deceased or disabled,
the client's legal representative;
(g) When the testimonial privilege otherwise provided by
division (L)(1) of this section is abrogated under law.
Sec. 3105.18. (A) As used in this section, "spousal support"
means any payment or payments to be made to a spouse or former
spouse, or to a third party for the benefit of a spouse or a
former spouse, that is both for sustenance and for support of the
spouse or former spouse. "Spousal support" does not include any
payment made to a spouse or former spouse, or to a third party for
the benefit of a spouse or former spouse, that is made as part of
a division or distribution of property or a distributive award
under section 3105.171 of the Revised Code.
(B) In divorce and legal separation proceedings, upon the
request of either party and after the court determines the
division or disbursement of property under section 3105.171 of the
Revised Code, the court of common pleas may award reasonable
spousal support to either party. During the pendency of any
divorce, or legal separation proceeding, the court may award
reasonable temporary spousal support to either party.
An award of spousal support may be allowed in real or
personal property, or both, or by decreeing a sum of money,
payable either in gross or by installments, from future income or
otherwise, as the court considers equitable.
Any award of spousal support made under this section shall
terminate upon the death of either party, unless the order
containing the award expressly provides otherwise.
(C)(1) In determining whether spousal support is appropriate
and reasonable, and in determining the nature, amount, and terms
of payment, and duration of spousal support, which is payable
either in gross or in installments, the court shall consider all
of the following factors:
(a) The income of the parties, from all sources, including,
but not limited to, income derived from property divided,
disbursed, or distributed under section 3105.171 of the Revised
Code;
(b) The relative earning abilities of the parties;
(c) The ages and the physical, mental, and emotional
conditions of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a
party, because that party will be custodian of a minor child of
the marriage, to seek employment outside the home;
(g) The standard of living of the parties established during
the marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties,
including but not limited to any court-ordered payments by the
parties;
(j) The contribution of each party to the education,
training, or earning ability of the other party, including, but
not limited to, any party's contribution to the acquisition of a
professional degree of the other party;
(k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or job
experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of
spousal support;
(m) The lost income production capacity of either party that
resulted from that party's marital responsibilities;
(n) Any other factor that the court expressly finds to be
relevant and equitable.
(2) In determining whether spousal support is reasonable and
in determining the amount and terms of payment of spousal support,
each party shall be considered to have contributed equally to the
production of marital income.
(D) In an action brought solely for an order for legal
separation under section 3105.17 of the Revised Code, any
continuing order for periodic payments of money entered pursuant
to this section is subject to further order of the court upon
changed circumstances of either party.
(E) If a continuing order for periodic payments of money as
alimony is entered in a divorce or dissolution of marriage action
that is determined on or after May 2, 1986, and before January 1,
1991, or if a continuing order for periodic payments of money as
spousal support is entered in a divorce or dissolution of marriage
action that is determined on or after January 1, 1991, the court
that enters the decree of divorce or dissolution of marriage does
not have jurisdiction to modify the amount or terms of the alimony
or spousal support unless the court determines that the
circumstances of either party have changed and unless one of the
following applies:
(1) In the case of a divorce, the decree or a separation
agreement of the parties to the divorce that is incorporated into
the decree contains a provision specifically authorizing the court
to modify the amount or terms of alimony or spousal support.
(2) In the case of a dissolution of marriage, the separation
agreement that is approved by the court and incorporated into the
decree contains a provision specifically authorizing the court to
modify the amount or terms of alimony or spousal support.
(F)(1) For purposes of divisions (D) and (E) of this section
and subject to division (F)(2) of this section, a change in the
circumstances of a party includes, but is not limited to, any
increase or involuntary decrease in the party's wages, salary,
bonuses, living expenses, or medical expenses, or other changed
circumstances so long as both of the following apply:
(a) The change in circumstances is substantial and makes the
existing award no longer reasonable and appropriate.
(b) The change in circumstances was not taken into account by
the parties or the court as a basis for the existing award when it
was established or last modified, whether or not the change in
circumstances was forseeable.
(2) In determining whether to modify an existing order for
spousal support, the court shall consider any purpose expressed in
the initial order or award and enforce any voluntary agreement of
the parties. Absent an agreement of the parties, the court shall
not modify the continuing jurisdiction of the court as contained
in the original decree.
(G) If any person required to pay alimony under an order made
or modified by a court on or after December 1, 1986, and before
January 1, 1991, or any person required to pay spousal support
under an order made or modified by a court on or after January 1,
1991, is found in contempt of court for failure to make alimony or
spousal support payments under the order, the court that makes the
finding, in addition to any other penalty or remedy imposed, shall
assess all court costs arising out of the contempt proceeding
against the person and shall require the person to pay any
reasonable attorney's fees of any adverse party, as determined by
the court, that arose in relation to the act of contempt.
Sec. 3105.41. As used in sections 3105.41 to 3105.54 of the
Revised Code:
(A) "Collaborative family law communication" means any
statement that occurs after the parties sign a collaborative
family law participation agreement and before the collaborative
family law process is concluded and that is made for the purpose
of conducting, participating in, continuing, or reconvening a
collaborative law process.
(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 matter without intervention by a court in
which parties sign a collaborative family law participation
agreement and are represented by collaborative family lawyers.
(D) "Collaborative family lawyer" means a lawyer who
represents a party in a collaborative family law process but does
not include a lawyer who is a public official and who does not
represent individuals other than public officials in their
official capacities.
(E) "Collaborative matter" or "matter" means a dispute,
transaction, claim, problem, or issue for resolution that arises
under Title XXXI of the Revised Code and is described in a
collaborative family law participation agreement. The term
includes a dispute, claim, or issue in a proceeding.
(F) "Family or household member" has the same meaning as in
section 3113.31 of the Revised Code.
(G) "Law firm" means an association of lawyers who practice
law together in a partnership, professional corporation, sole
proprietorship, limited liability company, or other association,
lawyers employed in a legal services organization, the legal
department of a corporation or other organization, or the legal
department of a government or governmental subdivision, agency, or
instrumentality.
(H) "Nonparty participant" means a person, other than a party
and the party's collaborative family lawyer, that the parties
expressly designate in writing, in a collaborative family law
participation agreement or an amendment to that agreement, to
participate in a collaborative family law process.
(I) "Party" means a person that signs a collaborative family
law participation agreement and whose consent is necessary to
resolve a matter.
(J) "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.
(K) "Proceeding" means a judicial, administrative, arbitral,
or other adjudicative process before a court, including related
prehearing and posthearing motions, conferences, and discovery.
(L) "Public official" means an officer or employee of the
state or any political subdivision of the state.
(M) "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.
(N) "Related to a collaborative family law matter" or
"related to a matter" means involving the same parties,
transaction or occurrence, nucleus of operative fact, claim,
issue, or dispute as a matter.
(O) "Sign" means, with present intent to authenticate or
adopt a record, to do either of the following:
(1) Execute or adopt a tangible symbol;
(2) Attach to or logically associate with the record an
electronic symbol, sound, or process.
Sec. 3105.42. (A) Sections 3105.41 to 3105.54 of the Revised
Code apply to a collaborative family law participation agreement
that meets the requirements of section 3105.43 of the Revised Code
and is signed on or after the effective date of this section.
(B) A court may not order a party to participate in a
collaborative family law process over that party's objection.
Sec. 3105.43. (A) A collaborative family law participation
agreement must be in a record, be signed by the parties, and
include all of the following:
(1) A statement of the parties' intent to resolve a matter
through a collaborative family law process under sections 3105.41
to 3105.55 of the Revised Code;
(2) A description of the nature and scope of the matter;
(3) The identity of the collaborative family lawyer who
represents each party in the collaborative family law process;
(4) A statement by each collaborative family lawyer
confirming the lawyer's representation of a party in the
collaborative family law process.
(B) Parties to a collaborative family law participation
agreement may agree to include additional provisions not
inconsistent with sections 3105.41 to 3105.54 of the Revised Code.
Sec. 3105.44. (A) A collaborative family law process begins
when the parties sign a collaborative family law participation
agreement.
(B) A collaborative family law process is concluded by any of
the following:
(1) A negotiated resolution of the matter as evidenced by a
signed record;
(2) A negotiated resolution of a portion of the matter as
evidenced by a signed record in which the parties agree that the
remaining portions of the matter will not be resolved in the
collaborative family law process;
(3) Termination of the process under division (C) of this
section.
(C) A collaborative family law process terminates when any of
the following occurs:
(1) A party gives notice in a record that the collaborative
family law process is ended.
(2) A party does either of the following:
(a) Begins a proceeding related to the collaborative family
law matter without the agreement of all parties;
(b) In a pending proceeding related to the collaborative
family law matter, does any of the following:
(i) Initiates a pleading, motion, order to show cause, or
request for a conference with the court;
(ii) Requests that the proceeding be put on the court's
docket;
(iii) Takes similar action requiring notice to be sent to the
parties;
(iv) Except as otherwise provided by division (E)(2) of this
section, discharges a collaborative family lawyer.
(3) A collaborative family lawyer withdraws from further
representation of a party.
(4) Termination occurs in any other way provided for in the
collaborative family law participation agreement.
(D) A party may terminate a collaborative family law process
with or without cause. A notice of termination need not specify a
reason for terminating the process.
(E)(1) A collaborative family lawyer who is discharged or who
withdraws shall give prompt notice in a record of the discharge or
withdrawal to all other parties.
(2) Notwithstanding the discharge or withdrawal of a
collaborative family lawyer, a collaborative family law process
continues if the unrepresented party engages a successor
collaborative family lawyer, and, in a signed record, all parties
consent to continue the process by reaffirming the collaborative
family law participation agreement, the collaborative family law
participation agreement is amended to identify the successor
collaborative family lawyer, and the successor collaborative
family lawyer confirms the lawyer's representation of a party in
the collaborative family law process.
(F) A collaborative family law process does not terminate if,
with the consent of all parties, a party requests a court to
approve a negotiated resolution of the matter or any portion of
the matter as evidenced by a signed record.
Sec. 3105.45. (A) Except as otherwise provided in division
(C) of this section, a collaborative family lawyer may not appear
before a court to represent a party in a proceeding related to the
collaborative family law matter. A collaborative family lawyer
representing a party that is a government or governmental
subdivision, agency, or instrumentality is subject to
disqualification under this division.
(B) Except as otherwise provided in division (C) of this
section, a lawyer in a law firm with which the collaborative
family lawyer is associated may not appear before a court to
represent a party in a proceeding related to the collaborative
family law matter if the collaborative family lawyer is
disqualified from doing so under division (A) of this section.
(C) A collaborative family lawyer or a lawyer in a law firm
with which the collaborative family lawyer is associated may
represent a party for the following purposes:
(1) To ask a court to approve an agreement resulting from the
collaborative family law process;
(2) To seek or defend an emergency order to protect the
health, safety, welfare, or interests of a party or of a family or
household member of a party if a successor lawyer is not
immediately available to represent the party or family or
household member of the party. If a successor lawyer is not
immediately available to represent the party or family or
household member of the party, divisions (A) and (B) of this
section do not apply until a successor lawyer assumes
representation of the party or family or household member of the
party or reasonable measures are taken to protect the health,
safety, welfare, or interests of the party or family or household
member of the party.
Sec. 3105.46. During the collaborative family law process,
at 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 and shall update
promptly information that has materially changed. Parties may
define the scope of disclosure, except as otherwise provided by
law.
Sec. 3105.47. Sections 3105.41 to 3105.54 of the Revised
Code do not affect the professional responsibility obligations and
standards applicable to a lawyer or other licensed professional or
the statutory obligation of a person to report abuse or neglect of
a child or adult.
Sec. 3105.48. 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.
Sec. 3105.49. (A) Subject to sections 3105.50 and 3105.51 of
the Revised Code, a collaborative family law communication is
privileged under division (B) of this section, is not subject to
discovery, and is not admissible in evidence.
(B) In a proceeding, the following privileges apply:
(1) A party may refuse to disclose, and may prevent any other
person from disclosing, a collaborative family law communication.
(2) A nonparty participant may refuse to disclose, and may
prevent any other person from disclosing, a collaborative family
law communication of the nonparty participant.
(C) Evidence or information that is otherwise admissible or
subject to discovery does not become inadmissible or protected
from discovery solely by reason of its disclosure or use in a
collaborative family law process.
Sec. 3105.50. (A) A privilege under section 3105.49 of the
Revised Code may be waived in a record or orally during a
proceeding if it is expressly waived by all parties and, in the
case of the privilege of a nonparty participant, it is also
expressly waived by the nonparty participant.
(B) A person that discloses or makes a representation about a
collaborative family law communication that prejudices another
person in a proceeding may not assert a privilege under section
3105.49 of the Revised Code relating to that communication.
Sec. 3105.51. (A) There is no privilege under section
3105.49 of the Revised Code for a collaborative family law
communication that is any of the following:
(1) Available to the public under section 149.43 of the
Revised 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;
(2) A threat or statement of a plan to inflict bodily injury
or commit a crime of violence;
(3) Intentionally used to plan a crime, commit or attempt to
commit a crime, or conceal an ongoing crime or ongoing criminal
activity;
(4) In an agreement resulting from the collaborative family
law process, evidenced by a record signed by all parties to the
agreement.
(B) The privileges under section 3105.49 of the Revised Code
for a collaborative family law communication do not apply to the
extent that a communication is either of the following:
(1) 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;
(2) Sought or offered to prove or disprove abuse, neglect,
abandonment, or exploitation of a child, unless a children's or
protective service agency or an adult protective services agency
is a party to or otherwise participates in the collaborative
family law process.
(C) There is no privilege under section 3105.49 of the
Revised Code if the communication is sought in connection with or
offered in any criminal proceeding involving a felony, a
delinquent child proceeding based on what would be a felony if
committed by an adult, or a proceeding initiated by the state or a
child protection agency in which it is alleged that a child is an
abused, neglected, or dependent child.
(D) There is no privilege under section 3105.49 of the
Revised Code if a court finds, after a hearing in camera, that the
party seeking discovery or the proponent of the evidence has shown
that the evidence is not otherwise available, the need for the
evidence substantially outweighs the interest in protecting
confidentiality, and the collaborative family law communication is
sought or offered in a criminal action or in a proceeding seeking
rescission or reformation of a contract arising out of the
collaborative family law process or in which a defense to avoid
liability on the contract is asserted.
(E) If a collaborative family law communication is subject to
an exception under division (B), (C), or (D) of this section, only
the portion of the communication necessary for the application of
the exception may be disclosed or admitted.
(F) Disclosure or admission of evidence excepted from the
privilege under division (B), (C), or (D) of this section does not
render the evidence or any other collaborative family law
communication discoverable or admissible for any other purpose.
(G) The privileges under section 3105.49 of the Revised Code
do not apply if the parties agree in advance in a signed record,
or if a record of a proceeding reflects agreement by the parties,
that all or part of a collaborative family law process is not
privileged. This division does not apply to a collaborative family
law communication made by a person that did not receive actual
notice of the agreement before the communication was made.
Sec. 3105.52. Even though a collaborative family law
participation agreement fails to meet the requirements of section
3105.43 of the Revised Code, a court may find that the parties
intended to enter into a collaborative family law participation
agreement if the parties signed a record indicating an intention
to enter into a collaborative family law participation agreement
and the parties reasonably believed they were participating in a
collaborative family law process. If a court makes such a finding,
sections 3105.41 to 3105.54 of the Revised Code apply to the same
extent as if the parties had entered into a valid collaborative
family law participation agreement.
Sec. 3105.53. Sections 3105.41 to 3105.54 of the Revised
Code modify, limit, and supersede the "Electronic Signatures in
Global and National Commerce Act," 114 Stat. 464, 15 U.S.C. 7001,
et seq., but do not modify, limit, or supersede section 101(c) of
that act, 15 U.S.C. 7001(c), or authorize electronic delivery of
any of the notices described in section 103(b) of that act, 15
U.S.C. 7003(b).
Sec. 3105.54. Sections 3105.41 to 3105.54 of the Revised
Code may be cited as the "Ohio collaborative family law act."
Sec. 3105.64. (A) Except as provided in division (B) or (C)
of this section, not less than thirty nor more than ninety days
after the filing of a petition for dissolution of marriage, both
spouses shall appear before the court, and each spouse shall
acknowledge under oath that he has that spouse voluntarily entered
into the separation agreement appended to the petition, that he
that spouse is satisfied with its terms, and that he that spouse
seeks dissolution of the marriage.
(B) If an action for divorce is converted to an action for
dissolution of marriage pursuant to section 3105.08 of the Revised
Code and if the conversion occurs more than thirty days after the
filing of the original petition in the divorce action, the
appearance and acknowledgement requirements of division (A) of
this section may be satisfied at the time of the conversion or at
a time that is not more than ninety days after the conversion.
(C) If a petition for dissolution is filed after the spouses
have successfully completed a collaborative family law process
pursuant to sections 3105.41 to 3105.54 of the Revised Code, the
appearance and acknowledgement requirements of division (A) of
this section may be satisfied at any time that is not more than
ninety days after the filing of the petition.
Section 2. That existing sections 2317.02, 3105.18, and
3105.64 of the Revised Code are hereby repealed.
Section 3. (A) The General Assembly acknowledges the Ohio
Supreme Court's authority in prescribing rules governing the rules
of conduct for practicing attorneys in this state, as provided by
Section 5 of Article IV of the Ohio Constitution.
(B)(1) The General Assembly hereby respectfully requests the
Ohio Supreme Court to amend the Rules of Professional
Responsibility to require a collaborative family lawyer to
disclose to clients in writing as part of a collaborative family
law participation agreement both of the following:
(a) Information regarding the withdrawal and disqualification
of the attorneys pursuant to section 3105.45 of the Revised Code
should a settlement not be possible;
(b) Information about other available options for resolution
or determination of family law matters.
(2) The goal of the disclosures under division (B)(1) of this
section should be to ensure that clients make fully informed
decisions about all available options.
(C) As used in this section, "collaborative family law
participation agreement" has the same meaning as in section
3105.41 of the Revised Code.
Section 4. The proposed changes made by this act to section
3105.18 of the Revised Code are intended to abrogate Mandelbaum v.
Mandelbaum (2009), 121 Ohio St.3d 433. Specifically, the proposed
changes clarify (1) that "a change in circumstances" must be
"substantial" so as to make the existing award no longer
reasonable or appropriate; and (2) that the "change in
circumstances" must be circumstances that were not taken into
account by the parties or the court when the award was set or last
modified, whether or not such circumstances were otherwise
contemplated or foreseeable. The proposed changes are also
intended to specify that other events may constitute a change in
circumstances and to give courts guidance so that courts must
consider any purpose expressed in the initial order or award,
enforce any voluntary agreement of the parties, and only modify
the continuing jurisdiction of the court as contained in the
original decree if the parties agree.
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