Basics of Divorce Arbitration

If you and your spouse haven't been able to reach a settlement agreement in your divorce, you might think that your only option is going to court and having a judge decide for you. But there's another alternative: divorce arbitration.

What Is Arbitration?

In arbitration, you and your spouse agree that you'll hire a private judge, called an arbitrator, to resolve the disputes in your divorce.

Who Are Divorce Arbitrators?

The arbitrator is usually a lawyer or a retired judge. Your lawyer and your spouse's lawyer know lots of arbitrators and will probably be able to agree on someone who'd be appropriate for your case.

How Does Arbitration Work?

As in a traditional court trial, each side prepares arguments and evidence and presents them to the arbitrator. But there are some significant differences in the process:

• The presentation of evidence is usually less formal in arbitration than in a courtroom.
• Arbitration is also private, unlike a trial, which is open to the public. However, your court records will still be public if you use arbitration.
• You may appeal a judge's decision in your divorce. In some cases, you may also ask to have the decision set aside or reopened. In contrast, an arbitrator's decision is generally binding.

Pros and Cons of Arbitration

Compared to a court trial, there are both advantages and disadvantages to arbitration, including:

• Cost. Arbitration can be expensive. You'll have to pay the arbitrator's fee as well as your attorney's fees. However, it will probably be slightly less expensive than a court trial, because it should take less of your lawyer's time.
• Time. Because of court backlogs, it can take a long time to schedule a hearing with a judge. You can probably schedule a hearing with an arbitrator more quickly. The arbitration itself may also take less time than a trial, because the rules of evidence may be more relaxed than in court.
• Choice. You and your spouse can choose the arbitrator, as well as the timing of the session. You can't choose which judge will hear your trial or when the trial will take place.
• Finality. Ordinarily, you can't appeal the arbitrator's decision. Some people might appreciate the certainty, but others worry about not having any recourse if the arbitrator's decision seems unfair or just wrong.
• Availability. A few states don't allow arbitration in divorce cases, so it may not be available in your case.

Deciding on Divorce Arbitration or Alternatives

There are other ways besides arbitration to get a divorce without going to court. Mediation is much less expensive and quicker than arbitration or a court trial. Also, you and your spouse will have more control over the outcome.

You don't need a lawyer for mediation. But if you have one, your attorney can help you prepare for the mediation and write (or review) a settlement agreement. If mediation isn't successful or isn't appropriate in your case, you should speak with your lawyer about the best way forward—including the possibility of arbitration.

Adapted from Nolo's Essential Guide to Divorce.