BILL ANALYSIS

C.S.H.B. 3833

By: Phillips

Judiciary & Civil Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

The Texas Commission on Uniform State Laws participates in the National Conference of Commissioners on Uniform State Laws to study and make recommendations on areas of law the conference believes should be consistent across all 50 states.  The commission recently recommended that the collaborative process, a form of alternative dispute resolution that enables couples who have decided to dissolve their marriage to work with lawyers and other family professionals to find a resolution that best meets the needs of both parties and their children, be codified to incorporate best practices and uniformity with the laws of other states. 

C.S.H.B. 3833 seeks to bring clarity and uniformity to the collaborative process by enacting the Collaborative Family Law Act. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 3833 amends the Family Code to enact the Collaborative Family Law Act and to establish the policy of this state regarding the peaceable resolution of disputes involving the parent-child relationship. The bill establishes that its provisions prevail if a provision of the bill conflicts with a provision of the Family Code or another statute or a rule of the state and the conflict cannot be reconciled. The bill requires that in applying and construing the bill's provisions, consideration be given to the need to promote uniformity of the law with respect to its subject matter among states that enact a collaborative law process act for family law matters. The bill establishes that the bill's provisions modify, limit, and supersede the federal Electronic Signatures in Global and National Commerce Act but do not modify, limit, or supersede a section of that federal act relating to consumer disclosures or authorize electronic delivery of any of the notices described in a section of the federal act relating to specific exceptions. The bill provides a short title, the Collaborative Family Law Act, for purposes of citing its provisions and establishes that its provisions are limited to matters arising under provisions of law relating to the marriage relationship, the parent-child relationship, and suits affecting the parent-child relationship.

C.S.H.B. 3833 requires a collaborative family law participation agreement to be in a record, be signed by the parties, state the parties' intent to resolve a collaborative family law matter through a collaborative family law process under the bill's provisions, describe the nature and scope of the collaborative family law matter, identify the collaborative lawyer who represents each party in the collaborative family law process, and contain a statement by each collaborative lawyer confirming the lawyer's representation of a party in the collaborative family law process. The bill requires a collaborative family law participation agreement to include provisions for suspending tribunal intervention in the collaborative family law matter while the parties are using the collaborative family law process and, unless otherwise agreed in writing, jointly engaging any professionals, experts, or advisors serving in a neutral capacity. The bill authorizes parties to agree to include in a collaborative family law participation agreement additional provisions not inconsistent with the bill's provisions.

C.S.H.B. 3833 establishes that a collaborative family law process begins when the parties sign a collaborative family law participation agreement. The bill prohibits a tribunal from ordering a party to participate in a collaborative family law process over that party's objection. The bill establishes that a collaborative family law process is concluded by a resolution of a collaborative family law matter as evidenced by a signed record; resolution of a part of a collaborative family law matter, evidenced by a signed record, in which the parties agree that the remaining parts of the matter will not be resolved in the process; or termination of the process. The bill sets out the circumstances under which a collaborative family law process terminates.

C.S.H.B. 3833 requires a party's collaborative lawyer to give prompt notice in a record to all other parties of the collaborative lawyer's discharge or withdrawal and authorizes a party to terminate a collaborative family law process with or without cause. The bill establishes that, notwithstanding the discharge or withdrawal of a collaborative lawyer, a collaborative family law process continues if, not later than the 30th day after the date the notice of the discharge or withdrawal of a collaborative lawyer is sent to the parties, the unrepresented party engages a successor collaborative lawyer and, in a signed record, the parties consent to continue the process by reaffirming the collaborative family law participation agreement, the agreement is amended to identify the successor collaborative lawyer, and the successor collaborative lawyer confirms the lawyer's representation of a party in the collaborative process.

C.S.H.B. 3833 establishes that a collaborative family law process does not conclude if, with the consent of the parties to a signed record resolving all or part of the collaborative matter, a party requests a tribunal to approve a resolution of the collaborative family law matter or any part of that matter as evidenced by a signed record. The bill authorizes a collaborative family law participation agreement to provide additional methods of concluding a collaborative family law process.

C.S.H.B. 3833 authorizes the parties to a proceeding pending before a tribunal to sign a collaborative family law participation agreement to seek to resolve a collaborative family law matter related to the proceeding and requires the parties to file promptly with the tribunal a notice of the agreement after the agreement is signed. The bill establishes that, subject to certain specified provisions of the bill, the filing operates as a stay of the proceeding. The bill prohibits a tribunal that is notified not later than the 30th day before the date of a proceeding that the parties are using the collaborative family law process to attempt to settle a collaborative family law matter from setting a proceeding or a hearing in the collaborative family law matter, imposing discovery deadlines, requiring compliance with scheduling orders, or dismissing the proceeding until a party notifies the tribunal that the collaborative family law process did not result in a settlement. The bill requires the parties to notify the tribunal in a pending proceeding if the collaborative family law process results in a settlement. The bill requires the parties, if the collaborative family law process does not result in a settlement, to file a status report at the following dates:

· not later than the 180th day after the date the collaborative family law participation agreement was signed or, if the proceeding was filed by agreement after the collaborative family law participation agreement was signed, not later than the 180th day after the date the proceeding was filed; and

· on or before the first anniversary of the date the collaborative family law participation agreement was signed or, if the proceeding was filed by agreement after the collaborative family law participation agreement was signed, on or before the first anniversary of the date the proceeding was filed, accompanied by a motion for continuance.

The bill requires the tribunal to grant a motion for continuance if the status report indicates that the parties desire to continue to use the collaborative family law process.

C.S.H.B. 3833 authorizes the tribunal, if the collaborative family law process does not result in a settlement on or before the second anniversary of the date the proceeding was filed, to set the proceeding for trial on the regular docket or dismiss the proceeding without prejudice. The bill requires each party to file promptly with the tribunal notice in a record when a collaborative family law process concludes and establishes that the stay of the proceeding is lifted when the notice is filed. The bill prohibits the notice from specifying any reason for termination of the process. The bill authorizes a tribunal in which a proceeding is stayed to require the parties and collaborative lawyers to provide a status report on the collaborative family law process and the proceeding and authorizes a status report to include only information on whether the process is ongoing or concluded. The bill prohibits the status report from including a report, assessment, evaluation, recommendation, finding, or other communication regarding a collaborative family law process or collaborative family law matter and prohibits a tribunal from considering a communication made in violation of provisions relating to the content of the status report. The bill requires a tribunal to provide parties notice and an opportunity to be heard before dismissing a proceeding based on delay or failure to prosecute in which a notice of collaborative family law process is filed.

C.S.H.B. 3833 authorizes a tribunal, during a collaborative family law process, to issue an emergency order to protect the health, safety, welfare, or interest of a party or a family as defined by provisions of law relating to protective orders and family violence. The bill establishes that the granting of an emergency order, if such an order is granted without the agreement of all parties, terminates the collaborative process. The bill establishes that a settlement agreement under the bill's provisions is enforceable in the same manner as a written settlement agreement under provisions of law relating to alternative dispute resolution procedures. The bill entitles a party to judgment on a collaborative family law settlement agreement if the agreement provides, in a prominently displayed statement that is in boldfaced type, capitalized, or underlined, that the agreement is not subject to revocation and the agreement is signed by each party to the agreement and the collaborative lawyer of each party.

C.S.H.B. 3833 disqualifies, except as otherwise provided by the bill's provisions, a collaborative lawyer, and a lawyer in a law firm with which such a collaborative lawyer is associated, from appearing before a tribunal to represent a party in a proceeding related to the collaborative family law matter regardless of whether the collaborative lawyer is representing the party for a fee. The bill authorizes a collaborative lawyer or a lawyer in a law firm with which the collaborative lawyer is associated to represent a party to request a tribunal to approve an agreement resulting from the collaborative family law process or to seek or defend an emergency order to protect the health, safety, welfare, or interest of a party or a family if a successor lawyer is not immediately available to represent that party. The bill establishes that, in the event that a successor lawyer is not immediately available to seek or defend an emergency order on behalf of the person, provisions of the bill disqualifying a collaborative lawyer and a lawyer in a law firm with which such a collaborative lawyer is associated from appearing before a tribunal to represent a party in a proceeding related to the collaborative family law matter do not apply after the party is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of that party or family. The bill authorizes another lawyer in a law firm with which a disqualified collaborative lawyer is associated, after a collaborative family law process concludes, to represent a party without a fee in the collaborative family law matter or a matter related to the collaborative family law matter if the party has an annual income that qualifies the party for free legal representation under the criteria established by the law firm for free legal representation, the collaborative family law participation agreement authorizes the representation, and the collaborative lawyer is isolated from any participation in the collaborative family law matter or a matter related to the collaborative family law matter through procedures within the law firm that are reasonably calculated to isolate the collaborative lawyer from such participation.

C.S.H.B. 3833 establishes that the bill's provision relating to the disqualification of a collaborative lawyer applies to a collaborative lawyer representing a party that is a governmental entity. The bill authorizes another lawyer in a law firm with which the collaborative lawyer is associated, after a collaborative family law process concludes, to represent a governmental entity in the collaborative family law matter or a matter related to the collaborative family law matter if the collaborative family law participation agreement authorizes that representation and the collaborative lawyer is isolated from any participation in the collaborative family law matter or a matter related to the collaborative family law matter through procedures within the law firm that are reasonably calculated to isolate the collaborative lawyer from such participation.

C.S.H.B. 3833 requires a party, during the collaborative family law process, on the request of another party, and except as provided by law other than the bill's provisions, to make timely, full, candid, and informal disclosure of information related to the collaborative matter without formal discovery. The bill requires a party to update promptly any previously disclosed information that has materially changed and authorizes the parties to define the scope of the disclosure during the collaborative family law process.

C.S.H.B. 3833 establishes that its provisions do not affect the professional responsibility obligations and standards applicable to a lawyer or other licensed professional or the obligation of a person under other law to report abuse or neglect, abandonment, or exploitation of a child or adult. The bill requires a prospective collaborative lawyer, before a prospective party signs a collaborative family law participation agreement, to assess with the prospective party factors the lawyer reasonably believes relate to whether a collaborative family law process is appropriate for the prospective party's matter and to provide the prospective party with information that the lawyer reasonably believes is sufficient for the prospective party to make an informed decision about the material benefits and risks of a collaborative family law process as compared to the material benefits and risks of other reasonably available alternatives for resolving the proposed collaborative matter, including litigation, mediation, arbitration, or expert evaluation. The bill requires a prospective collaborative lawyer, before a prospective party signs a collaborative family law participation agreement, to advise the prospective party that after signing an agreement, if a party initiates a proceeding or seeks tribunal intervention in a pending proceeding related to the collaborative family law matter, the collaborative family law process terminates; that participation in a collaborative family law process is voluntary and any party has the right to terminate unilaterally a collaborative family law process with or without cause; and that the collaborative lawyer and any lawyer in a law firm with which the collaborative lawyer is associated may not appear before a tribunal to represent a party in a proceeding related to the collaborative family law matter, except as authorized by the bill's provisions.

C.S.H.B. 3833 requires a prospective collaborative lawyer, before a prospective party signs a collaborative family law participation agreement in a collaborative family law matter in which another prospective party is a member of the prospective party's family or household or with whom the prospective party has or has had a dating relationship, to make reasonable inquiry regarding whether the prospective party has a history of family violence with the other prospective party. The bill prohibits a collaborative lawyer, if the lawyer reasonably believes that the party the lawyer represents or the prospective party with whom the collaborative lawyer consults, as applicable, has a history of family violence with another party or prospective party, from beginning or continuing a collaborative family law process unless the party or prospective party requests beginning or continuing a process and the collaborative lawyer or prospective collaborative lawyer determines with the party or prospective party what, if any, reasonable steps could be taken to address the concerns regarding family violence.

C.S.H.B. 3833 establishes that a collaborative family law communication is confidential to the extent agreed to by the parties in a signed record or as provided by law other than the bill's provisions. The bill makes the conduct and demeanor of the parties and nonparty participants, including their collaborative lawyers, and communications related to the collaborative family law matter occurring before the signing of the collaborative family law participation agreement, confidential, if the parties agree in a signed record. The bill establishes that a collaborative family law communication, whether made before or after the institution of a proceeding, is privileged and is not subject to disclosure and prohibits such a communication from being used as evidence against a party or nonparty participant in a proceeding. The bill establishes that any record of a collaborative family law communication is privileged and prohibits the parties and the nonparty participants from being required to testify in a proceeding related to or arising out of the collaborative family law matter or from being subject to a process requiring disclosure of privileged information or data related to the collaborative matter.

C.S.H.B. 3833 establishes that an oral communication or written material used in or made a part of a collaborative family law process is admissible or discoverable if it is admissible or discoverable independent of the collaborative family law process. The bill authorizes the issue of privilege, if the bill's provisions conflict with other legal requirements for disclosure of communications, records, or materials, to be presented to the tribunal having jurisdiction of the proceeding to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order of the tribunal or whether the communications or materials are subject to disclosure. The bill establishes that the presentation of the issue of privilege does not constitute a termination of the collaborative family law process.

C.S.H.B. 3833 authorizes a party or nonparty participant to disclose privileged collaborative family law communications to a party's successor counsel, subject to the terms of confidentiality in the collaborative family law participation agreement, and establishes that such collaborative family law communications remain privileged. The bill prohibits a person who makes a disclosure or representation about a collaborative family law communication that prejudices the rights of a party or nonparty participant in a proceeding from asserting a privilege. The bill establishes that such a restriction applies only to the extent necessary for the person prejudiced to respond to the disclosure or representation.

C.S.H.B. 3833 sets out specified circumstances for which there is no privilege for a collaborative family law communication and authorizes only the part of a communication necessary for the application of the exception to be disclosed or admitted if a collaborative family law communication is subject to such an exception. The bill establishes that the disclosure or admission of evidence excepted from the privilege does not make the evidence or any other collaborative family law communication discoverable or admissible for any other purpose.

C.S.H.B. 3833 authorizes a tribunal, notwithstanding that an agreement fails to meet the requirements of a collaborative family law participation agreement or that a lawyer has failed to comply with the informed consent requirement or the requirement to make reasonable inquiry regarding family violence, to find that the parties intended to enter into a collaborative family law participation agreement if the parties signed a record indicating an intent to enter into a collaborative family law participation agreement and reasonably believed they were participating in a collaborative family law process. The bill authorizes a tribunal, if the tribunal makes such findings and determines that the interests of justice require such an action, to enforce an agreement evidenced by a record resulting from the process in which the parties participated, apply the disqualification provisions of the bill, and apply the collaborative family law privilege.

C.S.H.B. 3833 defines "collaborative family law communication," "collaborative family law participation agreement," "collaborative family law matter," "collaborative family law process," "collaborative lawyer," "law firm," "nonparty participant," "party," "proceeding," "prospective party," "record," "related to a collaborative family law matter," "sign," and "tribunal." The bill defines "dating relationship," "family," "family violence," "governmental entity," "household," and "member of a household" by reference.

C.S.H.B. 3833 repeals the following provisions of the Family Code:

· Section 6.603, relating to collaborative law for purposes of provisions of law regarding alternative dispute resolutions in a suit for dissolution of marriage

· Section 153.0072, relating to collaborative law for purposes of provisions of law regarding certain suits affecting the parent-child relationship

EFFECTIVE DATE

September 1, 2011.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 3833 differs from the original, in a provision establishing the policy of the state regarding the peaceable resolution of certain disputes, by including disputes involving access to a child among the disputes given special consideration, whereas the original does not include such disputes among those given such consideration.

C.S.H.B. 3833 differs from the original by establishing that its provisions may be cited as the Collaborative Family Law Act, whereas the original establishes that its provisions may be cited as the Uniform Collaborative Family Law Act.

C.S.H.B. 3833 differs from the original by defining "collaborative family law matter" and specifying that the term means a dispute, transaction, claim, problem, or issue for resolution that arises under provisions of law relating to the marriage relationship, the parent-child relationship, and suits affecting the parent-child relationship, whereas the original defines "collaborative matter" and includes no such specification in the definition of that term. The substitute omits a provision included in the original defining "person." The substitute contains provisions not included in the original defining "dating relationship," "family," "family violence," "governmental entity," "household," and "member of a household" by reference to the Family Code.

C.S.H.B. 3833 differs from the original by making a provision of the bill prohibiting a tribunal notified that the parties are using the collaborative family law process to attempt to settle a collaborative family law matter from taking certain actions applicable to a tribunal that is notified not later than the 30th day before the date of a proceeding, whereas the original makes such a provision applicable to a tribunal that is notified 30 days before a proceeding.

C.S.H.B. 3833 differs from the original by establishing that, in the event that a successor lawyer is not immediately available to seek or defend an emergency order on behalf of a party, provisions of the bill disqualifying a collaborative lawyer and a lawyer in a law firm with which such a collaborative lawyer is associated from appearing before a tribunal to represent a party in a proceeding related to the collaborative family law matter do not apply after the party is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of that party or family, whereas the original specifies that such provisions do apply when the party is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of that party or family.

C.S.H.B. 3833 contains a provision not included in the original establishing that the presentation of the issue of privilege does not constitute a termination of a collaborative family law process.

C.S.H.B. 3833,  in provisions establishing that there is no privilege for a collaborative family law communication that is a disclosure in a report of suspected abuse or neglect of a child to an appropriate agency or in a proceeding regarding the abuse or a disclosure in a report of abuse, neglect, or exploitation of an elderly or disabled person to an appropriate agency, omits the exceptions included in the original for disclosures from such limits of privilege if the Department of Family and Protective Services is a party to or otherwise participates in the collaborative family law process.

C.S.H.B. 3833 omits a severability provision included in the original. The substitute differs from the original in conforming ways and in nonsubstantive ways by using language reflective of certain bill drafting conventions.