The risks of divorcing by way of binding arbitration are many, but because the process if private, unlike a public court hearing, is fast and is informal, many divorcing partners decide to take the risk it poses. Make no mistake; an arbitration divorce is a highly adversarial proceeding. It might be conducted in a more relaxed atmosphere than a State divorce courtroom but the end result can be just as final. Each party to an arbitrated divorce is given an opportunity to advance their position before a neutral, and party chosen, arbitrator. The arbitration process is similar to a regular court proceeding in many ways. There are usually divorce attorneys representing each side. There is the usual witness examination and cross-examination by both sides but the process is conducted in an informal “non rules of evidence” constrained manner. Unlike the ubiquitous court ordered mediation sessions, binding arbitration does not involve any sort of negotiations or communications between the parties with a friendly, unintimidating mediator. The arbitrator has the power to render a legally binding decision and both divorcing parties are required to honor that decision once it enters.
Inherent Risks of Divorcing by Binding Arbitration
- The arbitrator will make a final decision concerning dissolving the marriage but he need not be applying or even aware of applicable State divorce laws and spousal protections.
- Some divorcing parties agree at their own risk to completely forgo the application of State divorce laws and protections.
- Discovery and evidentiary issues are completely informal creating situations where improper evidence is considered while other evidence is not properly considered.
- Discovery rights to obtain documentary information may not be enforced leaving vital information such as spousal income tax documents and earnings record evidence may never be obtained or considered by the arbitrator.
- States limit arbitration awards in divorce actions where a State court is not so limited
- State divorce courts retain the final say in child support and child custody regardless of the arbitrator’s finding.
- Binding arbitration is not a free process and the spouse without financial resources may not be treated as fairly as the spouse with significant financial resources.
Getting Legal Help
If you or a member of your family is considering getting divorced through binding arbitration instead of a State court it may be important to access the guidance and assistance of an experienced divorce lawyer. Binding arbitration decisions can be final and in order to preserve all of your rights and interests in the dissolution of your marriage having the assistance of counsel in the process may prove to be extremely valuable.
