SB 440  - AS INTRODUCED

 

 

2020 SESSION

20-3018

05/04

 

SENATE BILL 440

 

AN ACT establishing the New Hampshire collaborative law act.

 

SPONSORS: Sen. Chandley, Dist 11; Sen. Carson, Dist 14; Rep. Mulligan, Graf. 12; Rep. B. Griffin, Hills. 6

 

COMMITTEE: Judiciary

 

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ANALYSIS

 

This bill provides for resolution of legal issues, including divorce, parental rights and responsibilities, and child support, through a collaborative law process.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

20-3018

05/04

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Twenty

 

AN ACT establishing the New Hampshire collaborative law act.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  New Chapter; New Hampshire Collaborative Law Act.  Amend RSA by inserting after chapter 490-I the following new chapter:

CHAPTER 490-J

NEW HAMPSHIRE COLLABORATIVE LAW ACT

490-J:1  Short Title.  This chapter may be cited as the New Hampshire collaborative law act.  

490-J:2  Definitions.  In this chapter:

I.     Collaborative law communication    means a statement, whether oral or in a document, that:

(a)  Is made as part of a collaborative law process;

(b)  Occurs after the parties sign a collaborative law participation agreement and before the collaborative law process is concluded; and

(c)  Is not otherwise privileged pursuant to the attorney client relationship.

II.     Collaborative law participation agreement    means an agreement by persons to participate in a collaborative law process.

III.     Collaborative law process    means a procedure intended to resolve a collaborative matter without intervention by a court in which persons:

(a)  Sign a collaborative law participation agreement; and

(b)  Are represented by collaborative lawyers.

IV.     Collaborative lawyer    means a lawyer who represents a party in a collaborative law process.

V.     Collaborative matter    means an issue for resolution which is described in a collaborative law participation agreement and arises under the law of this state, including, but not limited to:  

(a)  Marriage, divorce, annulment, legal separation, and property distribution;

(b)  Parental rights and responsibilities;

(c)  Grandparent rights;

(d)  Alimony, maintenance, and child support;

(e)  Parentage;

(f)  Premarital and post-marital agreements; and

(g)  Any modifications of any orders arising out of the matters set forth in subparagraphs (a)-(f).

VI.     Court    means a body acting in an adjudicative capacity which has jurisdiction to render a decision affecting a party   s interests in a matter.

VII.     Document    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.

VIII.     Law firm    means lawyers who practice law together in a partnership, professional corporation, sole proprietorship, limited liability company, association or legal services organization.

IX.     Neutral participant    means a person, other than a party and a party   s collaborative lawyer, that participates in a collaborative law process.

X.     Party    means a person that signs a collaborative law participation agreement and whose consent is necessary to resolve a collaborative matter.

XI.     Proceeding    means a judicial or other adjudicative process.

XII.     Prospective party    means a person who discusses with a prospective collaborative lawyer the possibility of signing a collaborative law participation agreement.

XIII.     Related to a collaborative matter    means involving the same parties, transaction or occurrence, nucleus of operative fact, dispute, claim, or issue as the collaborative matter.

XIV.     Sign    means with present intent to authenticate or adopt a document by electronic or non-electronic signature.

490-J:3  Applicability.  This chapter applies to a collaborative law participation agreement that meets the requirements of RSA 490-J:4 signed on or after the effective date of the chapter.

490-J:4  Collaborative Law Participation Agreement; Requirements.

I.  A collaborative law participation agreement shall:

(a)  Be in writing;

(b)  Be signed by the parties;

(c)  State the parties    intention to resolve a collaborative matter through a collaborative law process under this chapter;

(d)  Describe the nature and scope of the matter;

(e)  Contain a statement by each collaborative lawyer confirming the lawyer   s representation of a party in the collaborative law process; and

(f)  Disqualify the collaborative lawyer from representing a party in a case filed with a court involving one or more of the same parties in the same or a related matter, except for the filing needed to seek the court   s approval of an agreement reached in the collaborative case or in pending cases while stayed pursuant to RSA 490-J:6, I.

II.  Parties may agree to include in a collaborative law participation agreement additional provisions not inconsistent with this chapter or current law.

490-J:5  Beginning and Concluding Collaborative Law Process.

I.  A collaborative law process begins when the parties sign a collaborative law participation agreement.

II.  A court shall not order a party to participate in a collaborative law process over that party   s objection.

III.  A collaborative law process is concluded by a:

(a)  Resolution of a collaborative matter as evidenced by a signed agreement;

(b)  Resolution of a part of the collaborative matter, evidenced by a signed agreement, in which the parties agree that the remaining parts of the matter will not be resolved in the process; or

(c)  Termination of the process.

IV.  A collaborative law process terminates:

(a)  When a party gives written notice to other parties that the process is ended.

(b)  Except as otherwise provided by paragraph VII, when a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party.

(c)  When a party:

(1)  Files a petition or other pleading related to a collaborative matter without the agreement of all parties; or

(2)  In a pending proceeding related to the matter:

(A)  Initiates a pleading, motion, order to show cause, or request for a conference with the court; or

(B)  Requests that the proceeding be put on the court   s active docket; or

(C)  The matter is no longer stayed.

V.  A party   s collaborative lawyer shall give prompt written notice to all other parties if the lawyer has been discharged or withdraws as counsel.

VI.  A party may terminate a collaborative law process with or without cause.

VII.  Notwithstanding the discharge or withdrawal of a collaborative lawyer, a collaborative law process continues, if within 30 days or within a time agreed to by the team in writing:

(a)  The unrepresented party engages a successor collaborative lawyer; and

(b)  The parties consent in writing to continue the process by reaffirming the collaborative law participation agreement, and the successor collaborative lawyer confirms the lawyer   s representation of a party in the collaborative process.

VIII.  A collaborative law process shall not conclude if the parties jointly request the court to approve a settlement of the collaborative matter or any part thereof.

IX.  A collaborative law participation agreement may provide additional methods of concluding a collaborative law process.

490-J:6  Cases Already Filed in Court.

I.  Parties who have already initiated a proceeding by filing a petition with the court may jointly request the court to stay future action in the matter so the parties may engage in a collaborative process for resolution of the matter.  Before signing a participation agreement, the parties shall file an assented to motion to stay the proceedings with the court.  The case shall not proceed with the collaborative process unless the stay is granted by the court.  An extension of the stay may be requested of the court by written agreement to continue the collaborative process.

II.  Either party can initiate a filing with the court to remove the stay and proceed with a litigated solution in the matter at any time.

III.  Any unilateral filing with the court terminates the collaborative case.  The case shall be returned to the active docket.

IV.  A court shall provide parties notice and an opportunity to be heard before dismissing a case in which a notice of collaborative process is filed.

490-J:7  Emergency Order.  During a collaborative law process, a court may issue emergency orders to protect the health, safety, welfare, or interest of a party; however, filing for such an order terminates the pending collaborative law process.  Nothing in this section prohibits parties from exploring a return to the collaborative process after the issues that gave rise to the emergency order have been resolved and process outlined in RSA 490-J:13, III have been followed.  

490-J:8  Approval of Agreement by Court.  

I.  The terms of a collaborative law participation agreement shall be considered a binding contract and shall be enforceable by the trial court.

II.  Any agreements signed by the parties during the collaborative process are binding upon the parties in the same manner as they are in other family law proceedings.  The trial court fully retains all rights and duties to ensure that the agreements reached are fair and reasonable to all before being approved by the court.

III.  Agreements reached