H. B. 4619
(By Delegates Schoen and Webster)
[Introduced February 18, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §48-5A-101,
§48-5A-102, §48-5A-103, §48-5A-104, §48-5A-105, §48-5A-106,
§48-5A-107, §48-5A-108, §48-5A-109, §48-5A-110, §48-5A-111,
§48-5A-112, §48-5A-113, §48-5A-114, §48-5A-115, §48-5A-116 and
§48-5A-117, all relating to conducting certain family law
proceedings under collaborative law procedures.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §48-5A-101, §48-5A-102,
§48-5A-103, §48-5A-104, §48-5A-105, §48-5A-106, §48-5A-107,
§48-5A-108, §48-5A-109, §48-5A-110, §48-5A-111, §48-5A-112,
§48-5A-113, §48-5A-114, §48-5A-115, §48-5A-116 and §48-5A-117, all
to read as follows:
ARTICLE 5A. COLLABORATIVE FAMILY LAW PROCEEDINGS.
§48-5A-101. Findings; policy.
The Legislature finds that family law clients often have
particular needs and interests that cannot be addressed through
traditional litigation or by a competitive and adversarial system.
The Legislature further finds that the adversarial system which is
part of the conventional culture of litigation often results in
significant adverse financial, emotional, and psychological effects
for parties to a family law matters and to their children, as it
encourages increased animosity between the parties, exacerbates
underlying areas of conflict, and often results in polarization of
the respective positions of the parties. The Legislature also
finds that a distinct need exists in the area of family law for an
alternative approach to dispute resolution which targets settlement
from the outset and which employs cooperative negotiation and
problem solving that encourages compromise and direct communication
among the parties.
§48-5A-102. Collaborative law generally.
On a written agreement of the parties and their attorneys,
family law matters may be resolved under collaborative law
proceedings.
§48-5A-103. Definitions.
(a) Collaborative law. -- A procedure in which parties who are
involved in family law matters and the involved attorneys agree in
writing to use their best efforts and make a good-faith attempt to resolve their disputes arising from the family law matters on an
agreed basis without resorting to judicial intervention, except to
have a court approve the settlement agreement, make the legal
pronouncements, and sign the orders required by law to effectuate
the agreement of the parties as the court determines appropriate.
(b) Family law matters. -- Matters, including but not limited
to, those involving divorce, legal separation, equitable
distribution of property for unmarried parties, and custodial
responsibility between parents of an illegitimate child.
(c) Collaborative law agreement. -- A written agreement,
signed by the parties and the involved attorneys, that contains an
acknowledgment by the parties to attempt to resolve the disputes
arising from family law matters in accordance with collaborative
law procedures outlined in this article.
(d) Collaborative law procedures. -- The process for
attempting to resolve disputes arising from family law matters, as
set forth in this article.
(e) Collaborative law settlement agreement. -- An agreement
entered into between the parties as a result of collaborative law
procedures that resolves the disputes arising from the family law
matters.
(f) Third-party expert. -- A person, other than the parties to
a collaborative law agreement, hired upon agreement of both parties
pursuant to a collaborative law agreement to assist the parties in the resolution of their disputes.
§48-5A-104. Collaborative law information sheet.
(a) The Supreme Court of Appeals shall create an information
form for parties involved in family law matters that informs the
parties that they have the right to, upon mutual consent, resolve
their disputes on an agreed basis, without resorting to judicial
intervention, through the use of collaborative law procedures. The
court shall adopt this form as a statewide form on or before the
first day of January, two thousand nine, post the form on the
court's website, and take reasonable steps to ensure that it is
distributed statewide and made available to litigants or potential
litigants in family law matters.
§48-5A-105. Initial interview with attorney; required disclosures.
Upon initial interview or consultation with an attorney
regarding services for resolution of family law matters, an
attorney who is consulted regarding resolution of family law
matters shall advise the potential client that they have the option
to use collaborative law methods to resolve their disputes. If the
potential client expresses interest in the use of collaborative
law, the attorney shall facilitate the potential client's access to
an attorney practicing in collaborative law.
§48-5A-106. Ethical guidelines; collaborative law forms.
(a) The Legislature finds that the existing rules for
regulating the professional conduct of lawyers are principally based on an orientation focused on litigation in the context of an
adversarial system of justice and are not conducive to the practice
of collaborative law, which places an attorney not only in a role
of a lawyer acting in a representative capacity for the client's
interests, but also in a nonrepresentative capacity as a mediator.
(b) Prior to initiation of the practice of collaborative law
in the State of West Virginia, The Supreme Court of Appeals shall
set forth guidelines and standards addressing the professional
conduct for attorneys practicing in collaborative law.
(c) The Supreme Court of Appeals shall create a form
addressing the unique professional and ethical issues that arise
from the collaborative law resolution process. The form shall
address the role of the attorneys involved in such a process as
neutral professionals whose job is to help the disputing parties
attempt to settle their case, as well as the scope of
representation offered in a collaborative law process in comparison
to the scope of representation offered in an adversarial process.
The form shall also state that the attorneys involved in
collaborative law proceedings shall not represent the parties in
any litigation that results should a settlement not be reached.
The court shall adopt this form as a statewide form. Prior to
commencement of collaborative law proceedings, the form shall be
signed by both parties.
§48-5A-107. Collaborative law agreement requirements.
A collaborative law agreement must include provisions for:
(a) Full and candid exchange of information between the
parties and their attorneys as necessary to make a proper
evaluation of the case;
(b) Suspending court intervention in the dispute while the
parties are using collaborative law procedures;
(c) Hiring experts, as jointly agreed, to be used in the
procedure;
(d) Withdrawal of all counsel involved in the collaborative
law procedure if the collaborative law procedure does not result in
settlement of the dispute; and
(e) Other provisions as agreed to by the parties consistent
with a good-faith effort to collaboratively settle the matter.
§48-5A-108. Tolling of time periods.
A validly executed collaborative law agreement shall toll all
legal time periods applicable to legal rights and issues under law
between the parties for the amount of time the collaborative law
agreement remains in effect, including, but not limited to, any
applicable statutes of limitations and filing deadlines.
§48-5A-109. Notice to court of collaborative law agreement.
(a) No notice shall be given to the court of any collaborative
law agreement entered into prior to the filing of a civil action.
(b) If a civil action is pending at the time the collaborative
law agreement is entered into:
(1) A notice of the collaborative law agreement, signed by the
parties and their attorneys, shall be filed with the court. After
the filing of a collaborative law agreement, the court shall take
no action in the case, including, but not limited to:
(A) Setting a hearing or trial date in the case;
(B) Imposing discovery deadlines;
(C) Requiring compliance with scheduling orders; and
(D) Dismissing the case.
§48-5A-110. Tracking by court of classification of family law
cases.
(a) The Legislature finds that because the court must toll
time limitations imposed by court rule for cases in which
collaborative law is being used, a system must be implemented to
identify those cases and distinguish those cases from cases on the
court's active docket. The Legislature further finds that the
classification of family law cases by the family courts in which
they are pending will aid the courts in managing all family law
cases filed with the court.
(b) The Supreme Court of Appeals shall implement a statewide
uniform system by which family law courts shall classify family law
cases in a manner which identifies cases as being:
(1) Cases filed by pro se litigants;
(2) Cases filed by litigants represented by counsel; and
(3) Cases wherein the parties have agreed to use collaborative law.
§48-5A-111. Notification of court of settlement status.
(a) In cases where a civil action was filed before the
collaborative law agreement was entered into, and the collaborative
law procedures result in a settlement, the parties shall notify the
court of the settlement.
(b) In cases where a civil action was not filed before the
collaborative law agreement was entered into, and the collaborative
law procedures result in a settlement, the parties shall file
simultaneously with the court the collaborative law settlement
agreement and a petition, accompanied by a waiver of service of
process signed by both parties.
(c) In cases where the collaborative law procedures do not
result in a settlement within ninety days of the date on which the
parties entered into the collaborative law agreement, the parties
shall file with the court:
(1) A status report not later than the ninetieth day after the
date on which the parties entered into the collaborative law
agreement. If the parties have not already done so, the parties
shall file simultaneously with the status report a petition,
accompanied by a waiver of service of process signed by both
parties;
(2) A status report on or before the one hundred eightieth day
after the date on which the parties entered into the collaborative law agreement, accompanied by a motion for continuance. The court
shall grant the motion for continuance if the status report
indicates the desire of the parties to continue to use
collaborative law procedures; and
(3) A status report on or before the two hundred seventieth
day after the date on which the parties entered into the
collaborative law agreement, accompanied by a motion for
continuance. The court shall grant the motion for continuance if
the status report indicates the desire of the parties to continue
to use collaborative law procedures.
§48-5A-112. Failure to reach settlement generally; duty of
attorney to withdraw.
(a) If the parties fail to reach a settlement and no civil
action has been filed, either party may file a civil action.
(b) If collaborative law procedures do not result in a
settlement on or before the first anniversary of the date that the
collaborative law agreement was entered into, the court may:
(1) Set the civil action for trial on the regular docket; or
(2) Dismiss the civil action without prejudice.
(c) If a civil action is filed or set for trial pursuant to
subsection (a) or subsection (b)(1) of this section, the attorneys
representing the parties in the collaborative law proceedings may
not represent either party in any further civil proceedings and
shall withdraw as attorney for either party.
§48-5A-113. Judgment on collaborative law settlement agreement.
A party is entitled to an entry of judgment or order to
effectuate the terms of a collaborative law settlement agreement if
the agreement contains:
(a) A prominently-displayed statement that is boldfaced,
capitalized, or underlined, that the agreement is not subject to
revocation; and
(b) The signatures of each party to the agreement and the
involved attorneys.
§48-5A-114. Entry of order.
If a court determines that a party is entitled to an entry of
judgment or order pursuant to section one hundred thirteen of this
article, the court shall enter an order which must be signed and
entered by both parties. The order shall comply with all
applicable standards as set forth in chapter forty-eight of the
Code of West Virginia and the West Virginia family court rules.
§48-5A-115. Privileged and inadmissible evidence.
(a) All statements, communications, and work product made or
arising from a collaborative law procedure are confidential and are
inadmissible in any court proceeding. Work product includes any
written or verbal communications or analysis of any third-party
experts used in the collaborative law procedure.
(b) All communications and work product of any attorney or
third-party expert hired for purposes of participating in a collaborative law procedure shall be privileged and inadmissible in
any court proceeding, except by agreement of the parties to the
contrary.
§48-5A-116. Alternate dispute resolution permitted.
Nothing in this article shall be construed to prohibit the
parties from using, by mutual agreement, other forms of alternate
dispute resolution, including mediation or binding arbitration, to
reach a settlement on any of the issues included in the
collaborative law agreement. The parties' attorneys for the
collaborative law agreement may also serve as counsel for any form
of alternate dispute resolution pursued as part of the
collaborative law agreement.
§48-5A-117. Promulgation of rules.
The Supreme Court of Appeals shall promulgate new rules or
amend the rules of practice and procedure for family law to
establish procedures to carry out the intent of this chapter.
NOTE: The purpose of this bill is to allow for a collaborative
law procedure whereby parties involved in family law proceedings
may agree to resolve their disputes on an agreed basis without
having to resort to judicial intervention.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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