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Bill would establish alternative divorce procedure in Ohio

Special to the Legal News

Published: April 20, 2012

A Lancaster lawmaker has taken the reins on a bill that would establish a voluntary collaborative family law process to aid in the resolution of disputes without court intervention.

Republican Rep. Gerald Stebelton said House Bill 461 would usher in a “highly effective, voluntary dispute resolution process that allows parties to become educated, control the outcome of their termination of marriage and avoid costly and damaging divorce litigation where it is unnecessary.”

The proposal was introduced into the legislature in February and is before the House Judiciary and Ethics Committee. The bill, which is also known as the Ohio Collaborative Family Law Act, has been endorsed by the Ohio State Bar Association.

“Through collaborative law, Ohio residents will have a positive option to end marriage with mutual commitment to civility, open exchange of information, protection of their children’s best interests and preservation of family relations after divorce,” Stebelton said.

The lawmaker said collaborative law, which is also called collaborative practice, is a legal process that enables couples who have decided to separate or terminate their marriage to work with their lawyers and, on occasion, other professionals to avoid protracted litigation.

“This process allows the parties to avoid the uncertain outcome of a trial court proceeding and to achieve a settlement that best meets the specific needs of both parties and their children,” Stebelton said.

The voluntary process begins when a couple and their attorneys sign a contract or participation agreement binding each other to the process and disqualifying their respective lawyers the right to represent either party in any future family related litigation.

If enacted, HB 461 would require full and informal disclosure of information by both parties and provides for confidentiality of collaborative family law communications.

The bill would also establish a testimonial privilege for collaborative family law communications.

According to a bill analysis, under current Ohio law, spouses seeking a dissolution of marriage must, in most cases, appear in court no less than 30 but no more than 90 days after the petition for dissolution is filed to acknowledge having voluntarily entered into a separation agreement and to being satisfied with its terms.

HB 461 would allow spouses who have successfully completed a collaborative family law process to file a petition for dissolution and make their court appearance and acknowledgments at any time within 90 days of filing.

If a couple is unable to reach an agreement under the proposed process, either party would be permitted to file for divorce or legal separation but would be tasked with notifying the other party.

Both parties would then have to terminate the attorney-client relationship under the collaborative law process and hire new counsel for their pending divorce proceedings.

Under HB 461, the couple’s previous attorneys could not represent either party in the divorce or legal separation action. In addition, no one in the same law firm as one of the previous attorneys could be involved in the proceedings.

The bill states that a party could terminate a collaborative family law process with or without cause. A notice of termination would not have to specify a reason for ending the process.

The process would be officially terminated when one of the parties gives notice in a record that the process is over or when one of the parties begins a proceeding related to the collaborative family law matter without the agreement of all parties.

The contract would also be terminated if a collaborative family lawyer withdraws from further representation of one of the parties.

Stebelton said collaborative practice began in the U.S. in Minnesota in 1992. Collaborative law is also practiced is Australia, Bermuda, Canada, England, France, Germany, Israel and Switzerland.

“HB 461 allows the parties to hire separate attorneys and experts in specialty fields such as accountants, psychologists, investment specialists, pension evaluators and others to share the costs and the opinions of these experts,” he said.

“Upon reaching an agreement, the parties file a petition for dissolution or action for divorce and ask the court to terminate their marriage and order compliance by both parties of the negotiated agreement.”

HB 461 is backed by Reps. Richard Adams, R-Troy; Anne Gonzales, R-Westerville; Cheryl Grossman, R-Grove City; Michael Henne, R-Clayton; Ross McGregor, R-Springfield; Mark Okey, D-Carrollton; and Kenny Yuko, D-Richmond Heights.

The bill has yet to be scheduled for a second hearing.

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