The Divorce Arbitration Alternative
There is some good news for couples who want to resolve their divorce by private arbitration. As of October 1, 2021 the law will allow child custody, visitation and support to be resolved by arbitration. Previously arbitration was limited to property division and alimony. What is arbitration and why would you want it?
Arbitration is voluntary. If the spouses agree to arbitrate, in consultation with their lawyers, they choose and hire an arbitrator to decide the issues they designate. In a court case, there is no control over who will be the judge. The parties can engage an arbitrator who has the temperament and, where there are unusual or complex issues, the relevant expertise and experience, that they want. They can set the rules and other details of the trial, including timing. So arbitrations typically start and end sooner than a court trial.
Arbitration leads to a decision that binds the parties. It shouldn’t be confused with mediation, where the mediator can only make a recommendation. Arbitration is litigation and so can be just as time consuming, stressful and unpleasant as court litigation. But it takes place in private, not in open court. The parties decide the place of trial and limits on access by third parties to evidence and testimony.
Just as in a court trial, after hearing evidence and arguments of the lawyers, the arbitrator will decide the issues presented, which can now include, child custody, visitation and support. Although the arbitrator’s decision has to be approved by a judge of the Superior Court to be final, grounds for disapproval are very narrow so disapproval is rare. Once approved, no appeal is available.
In court trials, the judges are paid by the State. Arbitrators are paid by the parties, so there is an added cost, often substantial, to arbitration over a court trial. But that extra cost may be offset by the advantages of arbitration.
In the past, relatively few couples haven chosen arbitration. But this may change as arbitration becomes available to couples litigating custody and child support and in light of the backlog in the courts resulting from the pandemic. Now may be a good time to discuss the arbitration option with Attorney Cappalli.