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When To Use Arbitration in a Divorce


When you and your spouse have to go through a divorce, the process can be contentious. Your property must be divided in an equitable manner and there may be important issues of child custody and visitation at stake.

Furthermore, this is all happening at a time when both spouses may be going through a lot of emotions regarding the end of the marriage. Couples may seek assistance from outside parties in reaching a final divorce settlement and explore when to use arbitration.

Arbitration, Mediation & Litigation

The best way to understand when to use arbitration in a New Jersey divorce is to compare it to the two alternatives. One alternative is litigation, where you go before a family law judge, who will have the final say on your settlement.

The other alternative to arbitration is mediation. This is where a third party, one mutually agreed upon by you and your spouse, works to help you reach an agreement. The mediator can only guide the process and make suggestions. Unlike a courtroom judge, the mediator has no authority to settle any disputes

Arbitration has both similarities and differences to its two alternatives Like mediation, it brings in an independent third party to hear out both sides. The couples must agree on the process and the selection of the arbitrator. Arbitration is similar to mediation in that both processes typically work faster than litigation and therefore result in lower costs to both spouses.

At that point, arbitration takes on similarities to litigation. Each side puts forth their evidence. The arbitrator is entrusted with the authority to make final decisions. While those decisions can be appealed, New Jersey law recognizes them as legally binding.

There is, however, one big difference between arbitration and litigation when it comes to the presentation of evidence. An arbitration hearing is private. Litigation in court becomes a matter of public record. It’s not uncommon for spouses to desire that the reasons for their divorce not become public, particularly if children are involved.

Those are the choices couples have. Litigation is effectively the “default”, the path that will be trod in the event the spouses cannot agree on mediation and arbitration.

So, when is arbitration the best choice? The decision to go this route presumes the spouses are at serious odds–otherwise they would choose mediation and retain greater control over the final outcome. But going with arbitration also implies that the spouses, while they may be at a negotiating impasse, can still work constructively enough to agree on the arbitration process. And they value the confidentiality that arbitration offers.

The Arbitration Process in New Jersey

The first step is to secure an arbitrator to hear your case. Arbitrators are either attorneys or retired judges. This means you are getting a third party deeply familiar with New Jersey law on the equitable distribution of property and all the factors that must be considered in child custody.

Your arbitrator will then schedule the hearing about 6-12 months out. The arbitrator will define the scope of discovery–the exchange of information and documents that is to take place between the parties. An expedited discovery process is often a key advantage arbitration offers over litigation and a reason that arbitration tends to be more cost-effective.

At this point, while the manner and structure of the arbitration hearings can be informal, the process works very much like a court. Evidence is presented, including witness testimony. The arbitrator makes their ruling.

Appealing an Arbitration Ruling

If one of the spouses is not happy with the final decisions, there is an option to demand for a trial de novo, which must be done within 30 days of the ruling. It’s important to note that arbitrator’s decisions are not often overturned by a court. In the event that neither party contests the ruling, the divorce settlement takes on the form of a binding agreement and is enforceable in both New Jersey and federal courts.

DeTommaso Law Group, LLC brings serious experience to the table in any divorce settlement, whether the process is arbitration, mediation, or litigation. We find out what matters most to our clients and then fight for their best interests–from the establishing the process itself to the outcome. We can help you too. Call us today at (908) 274-3028 or contact us online to set up an initial consultation.

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