Using Arbitration to Resolve Issues in Divorce
Couples in New York who are facing divorce may want to consider arbitration to resolve property issues.

April 04, 2009 /24-7PressRelease/ -- Using Arbitration to Resolve Issues in Divorce

Article provided by Jonathan D. Katz, Attorney at Law. Please visit our Web site at www.jonathankatzlaw.com.

Couples in New York who are facing divorce may want to consider arbitration to resolve property issues. Arbitration has several benefits, including that it is less expensive and less time consuming than a typical court case. This article provides an overview of arbitration and family law disputes.

What is Arbitration?

Arbitration is a process for resolving disputes between parties outside of the formal court system. Like mediation, it is a form of alternative dispute resolution (ADR). During arbitration, the parties present the issues they want resolved to an impartial third party called the "arbitrator." Arbitrators generally are current or former attorneys or judges with extensive experience in certain practice areas. The parties have the right to select the arbitrator and the location of the arbitration.

Just like in a court case, the parties will be given an opportunity to present their case to their arbitrator, including any evidence supporting their position. After listening to each side, the arbitrator will then issue a binding decision on the matter. These decisions, just like those issued by a judge, are enforceable against the parties.

Parties may agree though a contract to settle any disagreements through arbitration (like an arbitration clause in an auto insurance policy) or they may agree voluntarily to submit their dispute to an arbitrator. Arbitration is used to resolve a number of legal disputes, including personal injury, insurance, real estate, employment and intellectual property disputes.

Each party may have a lawyer counsel them during the arbitration, although it is not a requirement. However, it is in the best interests of both sides to have their own attorneys. Just because arbitration does not take place inside a court room does not mean a lawyer is not necessary. Just as in a regular court case, attorneys can help the parties determine which issues are appropriate for arbitration, explain the relevant law on the issue and help gather supporting evidence -- all of which will help the parties build the most persuasive case possible to present to the arbitrator.

Arbitration and Family Law

Arbitration also can be used to resolve family law disputes. Spouses may have clauses in a prenuptial or postnuptial agreement that stipulate certain issues must be resolved through arbitration. Spouses also may include arbitration clauses in separation agreements. The law requires courts to recognize valid arbitration agreements and judges can order parties to arbitration in order to comply with the terms of these agreements.

Parties can contract to have all divorce issues resolved by an arbitrator, including issues of child support. However, it is not advisable to submit issues concerning children to arbitration -- particularly issues concerning child custody, visitation and support. Under New York law, any decision rendered by an arbitrator that impacts the "best interests of a child" is subject to review by the family court. If the court finds the arbitrator's decision is not in the best interests of the child, the court may overrule the arbitrator's decision and substitute its own. Issues concerning property division and alimony are better suited for resolution through arbitration.

The Benefits of Arbitration

If parties cannot use arbitration to resolve all of the issues of their divorce, why should they use the process at all? There are many reasons why parties should consider arbitration for settling specific issues in a divorce:

• Arbitration is more efficient and economical than the court system
• Arbitration offers a more private and confidential venue
• Arbitration is less hostile than the adversarial court system
• Experienced arbitrators are more knowledgeable about family law issues

New York judges have to deal with dockets jammed full of different types of cases. They do not have the time to become completely invested in and familiar with each case that comes before them. They also do not have in-depth knowledge of each type of legal matter that comes before their courts. Keeping cases moving off of their dockets is the main concern of most judges.

Arbitrators, on the other hand, are in a unique position to really get to know the parties, the case and the issues involved before making an informed decision. Arbitrators with experience in family law matters understand what is at stake. They have a working knowledge of New York's laws and are not under pressure to quickly move cases from their dockets. Further, courts are in favor of parties using arbitration to settle their disputes -- especially the heated and contested issues often present during divorce. Arbitration helps reduce the courts' case load and removes some of the judges' least favorite types of cases.

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