Arbitration in Family Law Cases

When it comes to North Carolina child custody and property division cases, the parties must attend mandatory pre-trial mediation. Mediation provides the parties an opportunity to resolve their issues outside of the courtroom with the help of their respective attorneys and a third-party neutral. Should the third-party neutral, referred to as an arbitrator or mediator, help the couple come to an agreement, then litigation can be avoided. Once an agreement has been made, a Property Settlement or Separation Agreement can be drawn up and signed by the parties with their respective attorneys’ approval. Typically a successful arbitration or mediation can significantly decrease the length of time it takes a Monroe Union County judge to make a final decision and grant the divorce.

Arbitration and mediation are types of alternative dispute resolutions (ADR). The purpose of ADR is to save time, money, and emotional energy for all parties involved by coming to an agreement and avoiding drawn out litigation. Negotiation during mediation is driven by the individual parties with a mediator facilitating talks between the two. Arbitration, on the other hand, involves an arbitrator acting more like a judge during the proceeding. An arbitrator can issue a binding judgment on specific issues. While mediation is court-ordered in North Carolina family law cases, arbitration is not. That being said, arbitration is favored just like mediation is by courts because because it saves judicial resources. The state of North Carolina was the first in the nation to adopt an arbitration statute specific to family law matters; it remains one of the most comprehensive pieces of legislation regarding family law arbitration to this date.

According to North Carolina’s Family Law Arbitration Act (NCFLA), N.C.G.S. 50-41, a couple has the ability to agree ahead of time to arbitration on any issue that arises out of the marriage, except for the divorce itself. This includes issues that arise during or after the marriage. In other words, an arbitration clause could be included in a postnuptial or settlement agreement. North Carolina also allows couples to agree ahead of time in a prenuptial agreement to arbitrate any issue except for child custody, child support, or the divorce itself.

While many may have the opinion that prenuptial and postnuptial agreements are unromantic, these legal documents can truly provide protection mechanisms for either party involved in the event of divorce or separation. In short, if the couple agrees to arbitrate future disagreements outside of the courtroom should the marital relationship end, both parties can save time, money, and the potential nasty and public aspects of a litigated divorce. Even if a couple does not agree ahead of time to arbitrate disputes, they may still be able to avail themselves of the benefits of this ADR.

Should you decide ahead of time, in writing, to arbitrate disputes that arise from your marriage, you can specifically stipulate who you would like to serve as arbitrator, and whether you prefer a panel of multiple arbitrators instead of just one (the default option). Each party’s North Carolina attorney can provide advice as to who the appropriate individual is to arbitrate your marital disputes if you agree to contract for it ahead of time. Although technically arbitrators do not necessitate a specific certification, most are lawyers trained in ADR techniques and the applicable law that affects your Monroe Union County case. Should the couple not be able to agree to the specific arbitrator they wish to use or how many arbitrators they want overseeing the proceeding, the court will appoint a single arbitrator to lead arbitration. The court chooses an arbitrator from an established arbitration organization that it considers sufficiently qualified in the area of family law arbitration.

Similar to several other states across the nation, North Carolina has adopted the Uniform Arbitration Act (UAA) which is much broader than the state’s NCFLA. While couples may be able to arbitrate some family law issues under the UAA, the NCFLA provides much more tailored guidance for the unique issues that arise in family law matters. An experienced Monroe Union County family law attorney will be able to advise you as to which act is best to consent to or arbitrate under.

ADR, whether mediation or arbitration, is a cost-effective manner in which to resolve your Monroe Union County family law issue. If you or someone you know is facing divorce, or considering including an arbitration provision in a family contract, it is vital to discuss your case with a skilled North Carolina family law attorney. The board-certified family law attorneys at Arnold & Smith, PLLC have practiced in family courts in Monroe Union County and throughout the state of North Carolina for years. Contact us today to your initial consultation.