Advantages and Disadvantages of Connecticut Divorce Arbitration

Divorce arbitration is a form of alternative dispute resolution that must be agreed upon by the parties. An arbitrator will be selected by the Parties to hear evidence and testimony from both sides and make a binding decision, similar to a judge. Divorce arbitration is unique in that the parties get to select the arbitrator and the issues that will be decided. While arbitration generally centers around financial issues, the law now allows for child custody and support issues to also be decided in arbitration.

In divorce arbitration, the role of the arbitrator is similar to that of a judge. They do not offer legal advice, nor should they side with either party. Often, the arbitrator is a former judge or active family attorney trained in how to conduct an arbitration. They will hear evidence, ask questions, and decide on the agreed-upon issues. The arbitrator's decision is binding and may be difficult to appeal or challenge.

Arbitrations are conducted in a manner similar to a trial. Both parties can present evidence and argument. The arbitrator may also ask them questions. The parties are also allowed to have their respective lawyers present. It is important to note that the arbitration rules must be agreed upon by the parties before it begins, providing each side with the opportunity to include any special provision they deem appropriate or necessary. There are generally no surprises in arbitration as both parties have agreed to how it will be conducted before commencement.

The parties select a divorce arbitrator. Some arbitrators have reputations for being impartial and fair, while others may be viewed as less desirable for various reasons. Because most parties retain counsel throughout the arbitration process, the respective lawyers assist in selecting the arbitrator they believe will best preside over the matter. It is common for lawyers to have prior dealings with a particular arbitrator and select them based on that experience.

Arbitrators typically charge an hourly fee for their service. This can range from $200 to $1000 per hour. The length and duration of the arbitration session will depend on the complexity of the issues being decided. The more complex the issues, the longer the arbitration will take.

Before beginning arbitration, both sides must sign documents agreeing to the arbitration rules and how the arbitrator's fee will be handled. Parties are free to craft an arrangement however they please surrounding the issue of the arbitrator's fee. Typically, the parties will share the cost of hiring an arbitrator.

As with most components of arbitration, the parties must agree upon a location and the setting for where the arbitration will occur. In most instances, arbitrations are held in an office or conference room.

Many couples retain counsel for the duration of the arbitration process. This is especially helpful if the issues to be decided are complex or require eliciting expert testimony. Lawyers are also integral in selecting the arbitrator and determining the scope of the marital issues to be decided.

Essentially all forms of evidence are allowable in arbitration. Testimony, documents, financial records, business and asset valuation evidence, and other forms of physical evidence may all be presented at an arbitration hearing. However, it is important to note that parties generally resolve the evidentiary issues before arbitration begins. This means that the parties must agree beforehand on what type of evidence will be permitted and what purposes it can be used for.

Arbitration shares many features with litigation. These include the presentation of testimony and evidence. If you have hired an attorney to represent you, you may be asked to give testimony. If child custody is being decided, then there is a chance that the arbitrator may want to hear from you regarding childcare and your relationship with the children. While you may be able to refuse, that may create an adverse inference in the arbitrator's mind and produce a less than favorable outcome in your case.

As with any court-approved resolution method, the arbitrator's decision must conform to the laws of Connecticut. While it is difficult to challenge an arbitrator's decision, it does not become finalized until the court approves it. The court will likely reject a decision that is outside the bounds of the law. The arbitrator must carefully weigh the facts and evidence to decide. They can only consider what has been presented during the arbitration session. Any irrelevant facts, evidence, or influence shall not be considered.

One of the unique features of arbitration is that there are restrictions on appealing or challenging the arbitrator's decision. These restrictions are spelled out and agreed upon before embarking on an arbitration session. An arbitration clause of this nature can make it difficult to reverse the outcome of the arbitration. Parties who disagree with the arbitrator's decision will likely be unable to alter or dismiss the outcome.

Virtually all divorce-related issues can be decided through arbitration. While most arbitration sessions handle the financial aspects surrounding the dissolution of a marriage (like alimony, division of marital property, asset valuation, retirement savings, and business equity), Connecticut law now allows for issues concerning child support and custody to also be decided through arbitration. This recent development in the law now gives couples the ability to forego the entire traditional divorce paradigm in favor of alternative dispute resolution methods.

Generally, an arbitration will cost the parties less than a trial.  Still, it is essential to remember that the arbitrator will charge an hourly fee. The arbitrator's fee could be a fixed hourly fee or determined by calculating the average of hourly fees charged by the attorneys representing you and your spouse.   Most parties also retain private counsel for the arbitration sessions.  There may also be costs and expenses associated with gathering evidence and investigating the finances and assets of the opposing party.

That said, whether you decide to arbitrate or litigate, the attitude, behavior, honest, and integrity of both you and your spouse.  It just takes one bad actor being unreasonable to drive up the costs of an arbitration or litigation and to extend the process.

The main difference between arbitration and mediation is the finality of the decision. In other words, the arbitrator's decision is binding, while the outcome of mediation is not. The purpose of mediation is to reach an agreement on the issues. In arbitration, evidence and argument can be presented, and then the arbitrator will decide for the parties. The parties have no say in what the arbitrator decides and cannot disregard it if they are not happy with the outcome.

While similar, there are some critical differences between the two. Arbitration must be agreed upon, while litigation does not require agreement. In fact, not only must the parties agree to enter into arbitration, but they must also agree on how it will be conducted, where it will be held, the rules, and who the arbitrator will be. The arbitrator must also be paid according to an hourly rate. While evidence can be presented in arbitration, the rules of evidence are relaxed, and generally, the parties will agree beforehand on what kinds of evidence can be considered. The arbitrator will then make a binding decision that can only be appealed under limited circumstances.

A judge will preside over the matter and decide at a trial. The parties will not be able to select the judge or the location or time of their trial. Litigation also generally follows the rules of evidence, where the judge decides on what evidence can be admitted. Once the judge hears all evidence and argument, they will then decide. This decision can be appealed if it can be shown that there were errors in law or that the judge abused their discretion.

Each dispute resolution approach has distinct advantages and risks. No one approach is superior to the others. The circumstances and facts surrounding the family law matter will dictate which approach will produce the most favorable outcome. In cases with acrimony and entrenched positions, litigation will likely be the only option. On the other hand, mediation may work if the parties are close on the issues but require a neutral third party to assist them in reaching an agreement. Mediation best serves clients when the term if the marriage is shorter (i.e. less than 10 years), there are clearly defined assets, when no children are involved, and when there is a high degree of trust and respect between the parties.

The cost of resolving a family law matter depends mainly on the disposition of the parties and the complexity of their issues/marital property. It is important to remember that any issues that cannot be resolved through mediation, arbitration, or negotiation must be litigated.

Cases with modest, well-defined martial assets, no children, and/or with shorter terms of marriage (e.g. less than 10 years) tend to be more streamlined.

Cases involving complex financial assets (e.g. family businesses, multiple properties, or exotic assets), child custody, marriages over 20 years, infidelity/affairs, mental illness (diagnosed and undiagnosed), substance abuse, and domestic violence (physical or coercive control) are inherently more involved.

Cooperative action, good behavior, mutual trust, and a commitment to rational decision making (as opposed to emotional  and anger-drive decision making) by you and your spouse have more impact on the cost-efficiency (or inefficiency) of your divorce than anything else.  Experienced divorce attorneys can customize a framework and process to efficiently resolve your disputes and reach a settlement, but cannot control or guarantee the  cooperation between the parties.

It only takes one bad, irrational party to complicate a divorce, delay and/or exponentially expand the process, and drive-up the costs.

Navigating cases with themes and behaviors including but not limited to  infidelity, sustained extra marital affairs, highly contested child custody, mental illness, substance abuse, and/or accusations of domestic violence (physical and non-physical)  is extremely complicated, often times less efficient, and generally more costly.

Both mediation and arbitration are confidential. The mediator and arbitrator are bound to keep what is discussed or presented during the sessions strictly confidential. Often mediation involves the discussion of facts and circumstances that will aid in the resolution of the issues. Those discussions are strictly confidential and cannot be used even if the mediation fails and the matter is litigated. Litigation is often conducted in open court and may become a public record. Still, if privacy is a concern, an experienced lawyer may persuade a judge to seal the record, making it difficult or impossible for prying eyes to discover the terms of the divorce decree.

Connecticut law has strict statutory requirements regarding the enforceability and validity of prenuptial agreements.

Pre-nuptial agreements can be challenged but will most likely need to be done through litigation. To challenge the validity of an agreement in court, an experienced family law attorney must present arguments and evidence concerning the purported agreement's circumstances. A judge will then decide to uphold or invalidate the prenup.

Engaging an experienced divorce and family law attorney is always advisable to ensure that your individual best interests are protected.  The terms of a divorce are profoundly important, often complicated, and can materially impact the rest of your life.   If there are substantial assets or potential tax implications in the case, an experienced lawyer is recommended, even if the parties are amicable. Unfortunately, many spouses begin the divorce process on good terms but ultimately descend into acrimony when disputes arise over the division of marital property and child support and custody issues. Things can become even more contentious if it is discovered that either spouse has moved on romantically. Retaining a lawyer should not be viewed as a hostile move but as necessary to promote and protect the individual best interests of that party.

Negotiations are an ongoing process. Even during litigation, the parties are still free to negotiate. One of the benefits of litigation over other dispute resolution methods is a comprehensive discovery process. Information may be gathered throughout the discovery process that will compel a party to return to the negotiating table. In mediation and arbitration, that may not be possible. But when discovery does not reveal facts or evidence that aid in negotiation, the issues will likely need to be litigated.

Mediation is a non-adversarial alternative dispute resolution method used in many civil cases, including divorce. Issues like child support, custody, and the division of marital property can all be resolved through divorce mediation. To take advantage of divorce mediation, both parties must first agree to participate, and then, choose a neutral, third party mediator.   A mediator's responsibility to help the parties reach an agreement.  Mediators cannot provide legal advise and they DO NOT represent the individual best interest of either party.  If mediation is successful and yields an agreement that complies with Connecticut's statutory requirements, the agreement is presented in family court to a judge for review, and (if approved by the judge), entered as a final order of the court.

Generally, the mediation process is much shorter than the other approaches. Still, if the issues are complex and involve several financial interests combined with various tax implications, a resolution may require multiple mediation sessions and a review of the agreement by an attorney and financial professionals. Each session usually takes two or three hours, and most cases require roughly three to four sessions. These sessions will be conducted over a few months, with more complex cases taking six months or more to complete.

Unfortunately, it is not uncommon in a contentious divorce for one spouse to hide assets or income from the other. In these instances, litigation may be the only option. As mentioned, litigation is the only form of dispute resolution that requires discovery. During discovery, tax and financial records can be subpoenaed along with witnesses who may know about a spouse's income or assets. In a matter being litigated, the judge has the power to compel a party to disclose information or face sanctions from the court. This can include fines, or the party can be held in contempt of court.

Regardless of which dispute resolution approach is undertaken, no law requires the parties to retain a lawyer.  Still, it is always recommended to (at the very least) engage an experienced family law attorney as your Review Counsel:  a)  to review your mediation agreement and ensure that you individual best interested have been protected; b) to ensure that the agreement meets the statutory requirements in Connecticut; and, c) make sure that you fully understand any and all risks that you have decided to assume . Since arbitration is similar to litigation, most people elect to have representation throughout that process. Legal representation is there to protect and advocate for the client's individual best interests, so a choice to forego that layer of protection can negatively affect the outcome if either side is not playing fair.