Divorce Arbitration: What is It and Why Choose It?
The traditional courtroom setting casts spouses as opponents in what can result in time-consuming and expensive litigation. For some, an alternative forum provides a more cost efficient outcome.
September 02, 2010
It is an unfortunate fact that many marriages end. For any number of reasons, spouses all across the nation file for divorce. Even though the marriage ends, many responsibilities from the marriage do not, including the mortgage payments, bills, leases, and most importantly, children. The traditional courtroom setting casts spouses and co-parents as opponents in what can result in time-consuming and expensive litigation. For some, an alternative forum provides a friendlier, faster and more cost efficient outcome.Divorce Arbitration
When a husband and wife enter into an agreement to go through divorce arbitration, they give the power of resolving conflicts to an arbitrator. The parties jointly select the arbitrator, who is frequently a judge or divorce attorney. The arbitrator is a neutral party who listens to both sides at the arbitration hearing. The proceedings are recorded and the arbitrator tenders written findings of fact, conclusions of law and an order for judgment to the trial court judge.
Typically, both parties are represented by their own attorneys who counsel the parties on matters regarding child support, maintenance, division of property and debts, child custody and visitation. As in a trial, lawyers may also question witnesses. Even though the process is more informal, the lawyers are there to advise the clients and protect their interests throughout the arbitration process.
The original arbitration agreement generally sets forth a time limit on the period in which either party can move to amend the final order. After that time, the order is binding and, other than matters related to custody and support of the marital children, it is often difficult to appeal the order. Support and custody generally remain open to appeal whether the parties proceed in court, mediation or arbitration.
How Divorce Arbitration is Different
Proceedings in divorce arbitration can be less formal than in a courtroom trial and are meant to be faster than wading through the crowded court docket. This provides the parties with an opportunity to complete the divorce with less expense than undertaking discovery and a full trial in court.
Some co-parents choose divorce arbitration to avoid positioning their children as spectators to their litigation battles. While each co-parent is entitled to his or her own attorney, arbitration does not have the same adversarial nature as traditional litigation.
Unlike a trial court judge, the neutral is selected by the parties and, depending on the individual concerns, the parties can select an arbitrator experienced in tax law, division of retirement and pension funds, business or stock valuation or non-marital property tracing matters.
Though often confused with mediation, arbitration differs in significant aspects. While the role of the mediator is to assist the parties in resolving the divorce issues, the arbitrator hears the case and makes a decision, much in the same way a judge does. The arbitrator may encourage the parties to settle but does not take an active role in driving the spouses to a mutual agreement. An arbitration order provides more finality than a mediated settlement; while the mediation outcome generally can be appealed, many issues in divorce arbitration are not subject to appeal.
While divorce can be a painful and messy experience, many people take some comfort in the privacy and expeditious resolution that arbitration can offer. Sometimes couples agree to arbitrate only those issues for which they could not reach a mediated settlement, often dealing with custody and visitation.
Those contemplating a divorce should consult with an experienced family law attorney to learn about their options and alternatives to traditional courtroom litigation. Depending on the specific circumstances, divorce arbitration may offer a faster, friendlier and more economical resolution to their divorce. If there are safety concerns or if an appeal is likely to be necessary, other solutions may offer a better fit. A knowledgeable lawyer can advise regarding viable options and work to protect financial and custodial interests at throughout the divorce.
Article provided by Richard J. Breibart
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