While traditional divorce proceedings are often the default choice for many couples, they can be time-consuming, expensive, and unpredictable. This is where divorce arbitration comes in as an alternative dispute resolution method.
Divorce arbitration is a process in which a neutral third party, known as an arbitrator, is chosen to make decisions regarding the terms of a divorce settlement.
In divorce arbitration, both parties agree to present their case to the arbitrator, who will then listen to the evidence on both sides and make a decision on the disputed issues. The arbitrator’s decision is legally binding and enforceable in court.
This article will explore the advantages of divorce arbitration and reveal what your lawyer may not tell you about this alternative dispute resolution process.
What is Divorce Arbitration?
Divorce arbitration is a form of alternative dispute resolution (ADR) where couples hire a neutral third-party arbitrator to resolve their disputes outside of court.
The arbitrator is usually a retired judge or an attorney with experience in family law. Unlike a state family court judge, you must pay the arbitrator for the time spent on the case. Most arbitrators charge by the hour. Most arbitrators are expensive and will have an hourly rate between $350 – $500 per hour.
Both parties present their arguments and evidence to the arbitrator, who makes a final and binding decision.
How Does Divorce Arbitration Work?
The arbitration process typically involves the following steps:
1. Agreement to Arbitrate
Both parties must agree to the arbitration process and sign a contract outlining the arbitration terms and conditions.
2. Selection of the Arbitrator
The parties will select an arbitrator, usually with the assistance of their attorneys. Each party typically recommends three arbitrators. The parties will look at the recommendations and mutually agree on an arbitrator.
In divorce arbitration, the parties are typically allowed to engage in discovery, similar to divorce court. Discovery is the process by which each party can obtain information and evidence from the other party, such as documents or witness testimony, to support their case.
Some common forms of discovery that may be used in divorce arbitration include:
- Interrogatories: These are written questions that one party sends to the other party, who must answer them in writing under oath. Interrogatories may be used to obtain information about the other party’s income, assets, debts, and other relevant facts.
- Requests for Production of Documents: These are requests for the other party to provide specific documents, such as bank statements, tax returns, or employment records. Requests for production of documents can help establish each party’s financial situation and may be used to support arguments for property division, spousal support, or child support.
- Depositions: Depositions are formal, in-person interviews in which one party’s attorney questions the other party or a witness under oath. Depositions may be used to clarify information obtained through other discovery methods or to obtain additional information.
- Expert Witness Reports: In some cases, parties may retain expert witnesses to provide testimony on issues such as property or business valuation or child custody. The expert witness may be required to provide a written report outlining their opinions and conclusions, which may be used as evidence in the arbitration.
The arbitrator will hold a hearing. Here are the things that will happen during a divorce arbitration hearing:
- Introduction: The arbitrator will introduce themselves, explain their role in the process, and establish the hearing rules.
- Opening Statements: Each spouse or their lawyer will have the opportunity to make an opening statement outlining their position on the issues being discussed.
- Evidence and Testimony: Both parties will present evidence and testimony to support their positions. This may include financial records, documents, deposition testimony, expert opinion reports, and witness statements.
- Cross-Examination: Each party will have the opportunity to cross-examine the other party’s witnesses.
- Closing Arguments: Each party will have the opportunity to make closing arguments, summarizing their positions and urging the arbitrator to rule in their favor.
A divorce arbitrator makes their decision by carefully considering all the evidence and testimony presented by both parties during the arbitration hearing.
The arbitrator will then apply the relevant laws and regulations to the facts of the case to arrive at a fair and equitable decision.
Once the arbitrator has made their decision, they will typically issue a written opinion or award, which sets out their findings of fact, conclusions of law, and the final decision on each issue in dispute.
In general, the decision of a divorce arbitrator is final and binding, meaning that it cannot be appealed except in very limited circumstances.
However, the parties can agree in advance to a process for appealing the decision, such as a review by a higher-level arbitrator or a right to appeal to a court.
What Issues Can Be Addressed at a Divorce Arbitration?
During a divorce arbitration, an arbitrator can decide a wide range of issues related to the divorce as long as they fall within the scope of the arbitration agreement.
Some of the most common issues that can be decided during a divorce arbitration include the following:
- Property division: An arbitrator can decide how marital property will be divided between spouses, including real estate, bank accounts, investments, and personal property.
- Child custody and visitation: An arbitrator can decide where the children will live, how much time they will spend with each parent, and other issues related to their care and upbringing.
- Child support: An arbitrator can decide how much child support should be paid by one parent to the other based on each parent’s income and expenses and the children’s needs.
- Spousal support: An arbitrator can decide whether one spouse should pay spousal support (also known as alimony) to the other, and if so, how much and for how long.
- Division of debts: An arbitrator can decide how marital debts, such as credit card balances and loans, should be divided between spouses.
- Legal fees: An arbitrator can decide how legal fees related to the divorce should be paid, including who is responsible for paying them and how much they should be.
Why Choose Divorce Arbitration?
One of the most significant benefits of divorce arbitration is flexibility. Unlike traditional divorce proceedings, arbitration allows you to set your schedule and choose the location of the hearing.
This means that you can avoid the stress and expense of traveling to court and scheduling your hearings around your work or family commitments.
2. Faster Resolution
Divorce arbitration is usually faster than litigation through family court. The parties can schedule the arbitration hearing at a time that works for them, and the arbitrator’s decision is final and binding, eliminating the need for appeals.
3. Confidentiality and Privacy
Divorce arbitration provides couples a private and confidential forum to resolve their disputes.
This is in contrast to litigation, where court proceedings are open to the public, and the divorce details can become part of the public record. Arbitration hearings are conducted in private, and the divorce details remain confidential.
In divorce arbitration, the parties can choose an arbitrator with expertise in their case’s specific issues.
This can be particularly beneficial in complex cases requiring specialized knowledge, such as business valuation or tax issues.
In contrast, judges in court proceedings may not have the same level of expertise in these areas of law.
Divorce arbitration is sometimes less expensive than litigation. Parties can save on legal fees and court costs because they do not have to undergo a lengthy court process.
I am including cost-effectiveness as a positive, but arbitration is sometimes more expensive than a traditional divorce. Remember, the arbitrator is paid by the hour to decide the case. If the attorneys are efficient with their time, you can save money using arbitration.
Disadvantages of Divorce Arbitration
While divorce arbitration can have some advantages over traditional litigation, there are also some potential disadvantages to consider.
Here are a few of the most common disadvantages of divorce arbitration:
- Limited right to appeal the decision: Once an arbitrator has made a decision, there is usually limited ability to appeal or challenge that decision. If you disagree with the arbitrator’s decision, you may have little legal recourse to seek a different outcome.
- Cost: Although arbitration can be less expensive than traditional litigation, it can still be costly, particularly if the arbitration process is lengthy or multiple issues are in dispute.
- Limited discovery: Unlike in traditional litigation, there may be limits on the amount of discovery (i.e., the process of gathering evidence) that can take place during an arbitration hearing. This can make it more challenging to gather all the evidence needed to support your case.
Divorce arbitration is an alternative way to resolve disputes that can be cost-effective, faster, and confidential. However, it also has disadvantages, such as limited appellate rights, potentially increased costs, and limited discovery.
What To Read Next
- Resolving Legal Disputes Peacefully: Understanding Court Mediation
- Finding Common Ground: A Look at the Divorce Mediation Process
- Mediation vs. Arbitration: Finding the Best Solution for Your Case
- 10 Tips for Making a Child Custody Mediation Successful
- What Not to Do and Say at a Child Custody Mediation
- Transformative Mediation: Creating Positive Change Through Dialogue