Arbitration As The Alternative Means

Divorce Arbitration vs. a Divorce Trial

If you are considering divorcing your New Jersey spouse and assume that the matter will end up in litigation, divorce attorneys caution that you will likely be waiting a while. The reason is that the courts are facing a staggering number of judicial vacancies, and as a result, most civil and divorce trials in many counties have been suspended indefinitely in order to focus on high-priority cases. Couples who cannot come to an accord on their own but who do not want to wait might want to consider divorce arbitration as an alternative.

What is Divorce Arbitration?

Divorce arbitration is similar in some ways to a divorce trial. The main differences are that the case is heard by an arbitrator as opposed to a judge, and the hearing does not take place in a courtroom but instead at the arbitrator’s office or at the office of one of the spouse’s attorneys. Both spouses can and should have the representation of their own divorce lawyer who makes arguments on their behalf. Once all of the arguments have been made, the hearing comes to a close, and the arbitrator usually provides the ruling within 30 to 45 days. While arbitration is mandatory in New Jersey for certain types of civil lawsuits, it is not for divorces. A divorce arbitrator’s decision is legally binding and can be appealed only if both of the spouses agree.

Who Can Be a Divorce Arbitrator?

The state of New Jersey requires arbitrators to meet certain professional standards. Arbitrators are experienced attorneys, and many of them are retired judges as well. In the context of divorce arbitration, they must have at least 10 years of experience in this area of family law, and they need to first obtain the approval of the judge who then assigns the case.

The Paths to Divorce Arbitration

There are three core paths to arbitration. Many couples choose this procedure because they recognize the complexities of their divorce but want to avoid litigation. If divorce mediation that has taken place either by choice or through a court referral fails to achieve an agreement, then arbitration is often the next step. A judge in some situations might also refer a divorce case directly to arbitration for various reasons.

Divorce Arbitration vs. Divorce Mediation

Many New Jersey divorces go through mediation, which is handled by a neutral third party who is often a divorce attorney. Mediation is not a hearing but rather a negotiation. The spouses are in control and are working toward a mutually beneficial agreement with the help of the mediator. Arbitration, on the other hand, is a more formal process, and the resulting award rendered by the arbitrator is binding upon the parties.

Divorce Arbitration vs. Divorce Litigation

Divorce litigation takes place in a courtroom, is presided over by a judge, and is bound by all New Jersey court rules and procedures. Divorce arbitration takes place in a less formal setting, which is often the arbitrator’s office or that of a divorce lawyer representing one of the spouses. While an arbitration unfolds much like a trial does, it is not bound by the same rules, and the couple can actually agree on the protocols used within certain parameters. In an arbitration, the timetable is flexible and can be set to accommodate the respective schedules of the estranged spouses and their family law attorneys.

Choosing the Arbitrator

The couple getting divorced along with their respective divorce lawyers will have the opportunity to choose an arbitrator. The fees of the arbitrator are paid by one or both of the spouses. What you should look for in an arbitrator depends on the specifics of your divorce, but generally, you will want to consider:

  • Fees
  • Background and experience
  • The types of divorce cases handled

Determining the Issues to Arbitrate

Once an arbitrator has been selected, the next step is to choose which issues are to be determined. It is not necessary for all aspects of the divorce to be arbitrated. Consider a scenario in which a couple went through mediation and was able to come to agreement on child custody and support but not the equitable distribution of marital assets and debts. The previous child custody and support agreement could be maintained and the arbitration hearing focused exclusively on property division.

Determining the Arbitration Protocol

There are parameters for divorce arbitration, and all divorce arbitrations must adhere to this set of rules. That being said, they are not nearly as strict or extensive as they are for a divorce trial. There is considerable latitude. In a highly contested case, the process may be very formal and similar to a trial in that a court reporter is present and the Rules of Evidence are strictly adhered to. In many cases, however, the protocols are more relaxed, and you’ll just need to determine where and when the arbitration will take place. Once all of these matters have been agreed to, the spouses sign an arbitration agreement. Often, you will also sign confidentiality agreements in order to ensure that your privacy is protected.

Arbitration Proceeds Similarly to a Trial but More Streamlined

Once the agreement is in place, the arbitration begins at the agreed date, time and location. There will be several people present: the arbitrator, you and your spouse and the family lawyers representing you. There will be opening statements, arguments, the presenting of evidence and, eventually, closing arguments. Many arbitration cases are concluded within a day or two. In more complex case, it may be necessary to allow for one day per issue, but any longer is uncommon. Once the hearing concludes, the arbitrator will advise all parties involved of a date of issuance for the decision.

The Decision

The goal of a divorce arbitrator is to provide a decision (referred to as an “award”) within 30 days. How long it takes to receive your ruling will depend on the complexities of your case, but those that take longer than 30 days are rare. The decision of the arbitrator is final. You are relinquishing control in this sense, which is why family lawyers generally advise mediation if possible.

The court will review the decision. There is scrutiny for any aspect dealing with children, such as custody and support. Most other aspects are simply reviewed in a perfunctory manner, and it is not common for a judge to overturn the ruling.

Legal Representation for Divorce Arbitration

If you live in New Jersey and are considering arbitration as an alternative to other options for ending your marriage, Lawrence Law is here to help. Our team of family law attorneys has a wealth of experience navigating many different types of divorces, including representing our clients in arbitration hearings. If you would like to meet with one of our lawyers to have your case reviewed, you can set up a consultation by calling us at 908-645-1000 or by using the contact form on our website.

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