What Is an Arbitrator
An arbitrator is a neutral third party, typically a retired judge or experienced family law attorney, whom you and your spouse jointly hire to make binding decisions on contested divorce issues. Unlike a mediator who helps you reach your own agreement, an arbitrator hears evidence and arguments, then issues a decision that functions like a court judgment.
In most states, arbitration agreements in divorce cases must be in writing and signed by both parties. The arbitrator's decision becomes binding and is enforceable in court, though grounds for appeal are extremely limited compared to court decisions. This finality is what distinguishes arbitration from litigation.
What an Arbitrator Can Decide
Arbitrators in family law cases typically handle property division, spousal support amounts and duration, and sometimes custody and child support. However, state law varies on which issues can be arbitrated. For example, many states restrict arbitration of custody matters because they prioritize the "best interests of the child" standard that judges apply. Check your state's specific rules before assuming all divorce issues can go to arbitration.
The arbitrator's award must comply with your state's laws on equitable or community property division, spousal support guidelines (usually based on income, length of marriage, and other statutory factors), and child support calculations. They cannot award amounts outside statutory limits.
The Arbitration Process
- Selection: You and your spouse agree on an arbitrator, often through a roster provided by arbitration organizations or referrals from family law attorneys. Arbitrators typically charge $250 to $500+ per hour.
- Discovery: You exchange financial documents and other evidence, usually on a condensed timeline compared to court litigation.
- Hearing: Both parties present evidence and arguments. The arbitrator may allow more informal rules of evidence than a court would.
- Award: The arbitrator issues a written decision, typically within 30 days of the final hearing. This award is final and binding on both parties.
- Enforcement: If one party doesn't comply, the other can file the award in court and enforce it like a judgment.
Cost and Timeline Considerations
Arbitration often costs more upfront than mediation but frequently costs less than full litigation. You're paying the arbitrator's hourly rate plus administrative fees, which can total $5,000 to $20,000 or more depending on case complexity. However, you avoid depositions, motions, and lengthy court delays. Most arbitrations conclude within 3 to 6 months, versus 1 to 3 years for contested court cases in many states.
Common Questions
- Can we appeal an arbitrator's decision? Appeals are rarely successful. Courts can overturn arbitration awards only on narrow grounds like fraud, corruption, or clear abuse of authority. You essentially give up the right to appeal when you agree to arbitration.
- What if we disagree on the arbitrator? Both parties must consent to the arbitrator's selection. If you can't agree, either party can refuse arbitration and proceed to court instead. This is why choosing the arbitrator jointly is a critical negotiation point.
- Does arbitration keep things private? Yes. Arbitration proceedings and awards are typically confidential, whereas court filings are public. This is valuable if you want to keep financial details and personal disputes out of the public record.