by Karen Covy
If you want to get divorced, you have to go to court, right? The answer is yes …. and no. Only a judge has the power to divorce you. So, yes, if you want to get divorced, at some point you (or in some jurisdictions, just your attorney) have to appear in front of the judge. But, just because you have to end up in court to finalize your divorce, that doesn’t mean you have to start in court, or stay in court the entire time you’re going through your divorce. Today, you have options.
There are many ways you can work through your divorce now. You can use mediation, negotiation, collaborative law or “cooperative” law. All of those are alternative dispute resolution systems that minimize your time in court. What is newer in the world of family law dispute resolution is arbitration.
Arbitration is like a “mini trial.” Typically, two parties to a dispute will appear before an arbitrator and conduct an informal “trial” of their case, usually in the arbitrator’s office. Each side presents witnesses and evidence. The arbitrator presides over the hearing much as a judge would preside over a trial. The arbitrator listens to all of the evidence and rules on any objections the lawyers might have. Then, after the hearing is over, the arbitrator decides the case and enters an award. That award then gets confirmed in court, and the case is resolved.
So, at this point you may be thinking, “if an arbitration is just a mini trial, why bother? Why not just stay in court.” There are lots of reasons.
So, if arbitration is so wonderful, why isn’t everyone doing it? The simple reason is that, traditionally, people haven’t used arbitration to resolve family law cases. Arbitration has been used for hundreds of years to solve other types of cases. But not family cases. And law is nothing if it is not traditional.
At this point, most states (except Kentucky) allow for arbitration in family law cases. But only a few states have specific matrimonial law arbitration statutes. ( Colorado, Connecticut, Indiana, Michigan, New Hampshire, New Mexico and North Carolina have specific statutes for family law arbitration.) If you want to arbitrate in any other state, your lawyer has to rely on general arbitration statutes that may not exactly fit family law cases. That’s a bit of a challenge. And because there aren’t a lot of people doing family law arbitrations yet, many lawyers aren’t comfortable doing them. Finally, even in states that recognize family law arbitration by statute, the court usually maintains the final say over matters involving children: custody, visitation and parenting issues. So, using arbitration to resolve your divorce issues is not without challenges. But, it’s a choice.
If you are interested in arbitrating your case, ask your attorney about it. Maybe arbitration can help you, maybe it can’t. The bottom line is, it is yet one more option you have for resolving your case yourself and staying out of court.
Karen Covy is a lawyer, mediator, educator, and the author of When Hapily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. This article is re-posted with permission from Karen Covy’s blog at: http://karencovy.com/is-your-divorce-case-going-nowhere-in-court-maybe-you-should-consider-family-law-arbitration/