Obtaining a Divorce Through Arbitration
Other than the death of one of the spouses, divorce attorneys note that the main reason why a marriage comes to a premature end is some form of conflict between the parties. Many estranged couples are able to come to an accord through negotiating a settlement, either on their own or with the assistance of their respective divorce lawyers, and statistics show that very few divorces need to be decided by a third party. Of those cases, many couples are ending up in arbitration rather than going to trial. There are a few factors at play here, but perhaps chief among them is a greater awareness about the negative impact litigated divorces can have on everyone involved.
What Is Divorce Arbitration?
Arbitration is an alternative to litigation for divorces and other family law matters. Other choices for estranged couples include collaborative divorce and divorce mediation. Arbitration differs from those alternatives in that it presided over by an arbitrator who is often retired judge, who hears each spouse’s case, and who then makes a decision on all applicable issues based on the evidence presented.
The main difference from a divorce trial is that litigation must proceed according to strict court rules and procedures. Arbitration is somewhat less formal, and the arbitrator has the latitude to run the hearing as deemed appropriate for that particular case. That allows arbitration to often be less time-consuming and therefore less expensive than litigation. The process is still bound by all relevant laws, however. In some situations, a prenuptial or postnuptial agreement specifies arbitration as the manner in which a future divorce will be resolved.
Like most states, New Jersey has adopted the principle of equitable distribution when it comes to property division, and divorce lawyers caution their clients that this means fair but not necessarily equal. In other words, the court—or in this case the arbitrator—determines how the estranged couple’s marital property will be divided. In addition to asset and debt division, the arbitration ruling can encompass:
- Child support
- Child custody and visitation
How Does Arbitration Differ From Mediation?
Most divorces in New Jersey are achieved through an uncontested process, and this is preferable when possible as it is the quickest and most affordable method and gives the estranged spouses the greatest degree of control. When this approach is not possible, mediation is the most common form of divorce dispute resolution. Through this process, a divorce mediator guides the spouses through the negotiation, focuses on those areas where there are disagreements and helps the couple come to compromises. There are a few similarities between divorce mediation and arbitration, but the main difference is that a mediator is primarily there to be a guide and does not have the final say in the way that an arbitrator does.
More About the Divorce Arbitration Process
Most divorce arbitration hearings are not mandated but are instead agreed to and then initiated by the divorcing couple. Each spouse must provide written consent, which is typically done after consultation with their respective family lawyers. It is possible for only one spouse to submit the form if the other spouse refuses, and depending on the circumstances, the court may then mandate participation for that other spouse. The proceedings usually take place at the arbitrator’s office, although in some cases they are held at the offices of one of the estranged spouse’s attorneys.
Is Divorce Arbitration Legally Binding?
Divorce arbitration in New Jersey results in a legally binding decision, which is referred to as an Arbitration Award. Although not common, couples can opt for non-binding arbitration, and that gives them recourse should they be unhappy with part or all of the Award. Even in binding arbitration, however, the Award can be appealed, but only if both parties have agreed that such step is possible and have outlined the appeal process in advance.
Benefits of Divorce Arbitration
The advantages of arbitration over litigation for divorce include:
- The ability to shield children
- Generally less expensive than a trial, even though the fees of the arbitrator are borne by one or both of the spouses
- A shorter resolution time frame
- Privacy and discretion
Many couples who choose arbitration are not angry with each other but simply need an outside party to rule on certain complex issues that have to be dealt with. Consider a scenario in which a couple owns a business together. Dividing such an enterprise is not simple even when both parties are working together well. One of the benefits of binding arbitration is that you have the certainty of a resolution. Divorce lawyers warn that if mediation or collaborative divorce fails, then you must move on to arbitration or litigation as a next step.
Privacy and Discretion
Family law attorneys also recommend arbitration over litigation because a court trial is public record. During the trial itself, everything about your marriage and your respective private lives will be aired, and this of course can cause a great deal of harm to your young children should you have any. Financial records and other sensitive data may be added to the public record, and any person can put in a request for that information. With arbitration, everything remains between you, your spouse and the arbitrator, and arbitrators sign confidentiality agreements in order to give you peace of mind.
Arbitration Is an Easier Process
Litigated divorces can be quite expensive. Divorce arbitration is usually less costly in comparison. Arbitration is also a faster process. According to family lawyers, most take just several meetings and result in a decision within 30 to 45 days whereas the average litigated divorce takes between 18 and 24 months.
Legal Assistance Arbitrating Your Divorce
If you are considering ending your New Jersey marriage and want to avoid a trial, Lawrence Law is here to provide the legal assistance you need. Our divorce and family law attorneys have extensive experience in representing clients who are going through the arbitration process. Lawrence Law recommends an in-person consultation through which we can review your case and answer any questions that you may have. To schedule that appointment at either our Red Bank or Watchung office, call us at 908-645-1000 or contact us using the form on our website.