The Role of Arbitration in a Divorce

The statistics are overwhelming and a little depressing. Almost half of the marriages in the United States end in a divorce. The failure of a marriage can be an emotional roller coaster, involving painful issues that must be resolved, such as child custody, visitation, child support, spousal support, and division of property. Crowded court dockets often mean delays before a divorce case ever gets to a judge. Trials and hearings can add time and hefty legal fees to the anxiety and frustration most people feel during a divorce proceeding.

Businesses have used arbitration as an alternative to court proceedings for many years. Submitting entire divorce cases or selected issues to an arbitrator is a relatively recent procedure people have started using to keep costs in check.

What is Arbitration?

Arbitration is the process by which parties to a dispute agree to submit the issues upon which they are unable to reach agreement to an independent arbitrator.

man and woman

Each side in the dispute submits evidence in support of its position to the arbitrator, who is empowered by the parties’ agreement to make a decision.

What are the Benefits of Arbitration?

There are two primary advantages to arbitration versus going to court: time and money. Getting a case in front of a judge can take a year or more in some jurisdictions. This does not include the time taken by the parties for pre-trial discovery and the exchange of financial information.

arbitration benefits

Once a case is on a court calendar, postponements add to the time before a hearing or trial and add to the cost in legal fees for the attorney’s time.

Once the parties agree on an arbitrator, a hearing can be held within weeks of completing discovery.

How Do Parties Get Started?

The parties must agree to submit all or some of the issues in a divorce action to arbitration. This agreement, known as an arbitration agreement, contains the rules and procedures for the arbitration.

The agreement includes the method for selecting the arbitrator, whose fee is usually split between the parties. If you’re in California, you would research California arbitration services – the services would be done from within the state you’re filing in.

arbitration handshake

The arbitrator is an independent, impartial third party, usually an attorney or retired judge known to all parties or their attorneys. It can also be someone selected through one of the alternative dispute resolution organizations throughout the country that train and assign arbitrators.

Can I Appeal the Arbitrator’s Ruling?

arbitration meating

The arbitration agreement will specify if the ruling by the arbitrator is binding or non-binding. Absent a showing of bias on the part of the arbitrator, a binding ruling is final and cannot be appealed. A non-binding ruling can be appealed through the courts.

Is Arbitration Allowed in Every State?

Each state has its own laws controlling the grounds and procedures for deciding issues in a divorce case. Not all states allow arbitration as an alternative to going to court.

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Even in states that allow arbitration, the courts retain the power to change child support, custody and visitation decisions regardless of agreements by the parents or arbitration rulings.

What Happens at an Arbitration?

The arbitration agreement sets the rules and procedures for submission of evidence by the parties and may limit discovery prior to the hearing. An arbitration hearing is conducted in a manner similar to a trial in court.

arbitration hearing

The attorneys for the opposing parties make opening statements, each side presents witnesses or documentary evidence to support its position, there is cross-examination of opposing witnesses, and each attorney makes a closing argument or summation.