ARBITRATION & LITIGATION
The peaceful settlement of disputes and the prevention of their escalation are worthy goals for any couple getting a divorce. There are several differences between arbitration and litigation and both have its advantages and disadvantages. In choosing whether to proceed with either, you should consider privacy, time, cost, flexibility, and finality concerns, among other factors.
Arbitration is another private form of dispute resolution between a divorcing couple. When a couple is unable to reach a resolution regarding a specific issue and would like a third party to render a decision but would still like to stay out of court, arbitration is an option.
Arbitration is similar to a divorce trial. However, it is in a private and less formal setting, not a court. The process includes the couple and their lawyers choosing an arbitrator, who is most likely a current or retired judge or attorney, and privately presenting opening statements and evidence. The arbitrator will then review all of the issues and render a decision known as an award.
Typically, this award, which is formally known as the Arbitrator’s Award, cannot be appealed.
Advantages of Arbitration:
● The couple selects the arbitrator, as opposed to a randomly appointed judge.
● The couple has the opportunity to choose the specific date, time, and place of their hearing, as opposed to being limited to others’ schedules.
● Divorcing couples can have privacy and confidentiality throughout the arbitration process.
● Arbitration can save time and money compared to a court trial.
● An arbitrator does not have to follow any rules of evidence so they may consider evidence that a judge or jury would not.
● An arbitrator is not required to follow the law and can make decisions based on what they perceive to be fair.
Disadvantages of Arbitration:
● If the arbitration is binding, the couple forfeits their right to appeal the award.
● There is no formal evidence process. Therefore, there are no depositions nor a discovery process.
● If the matter is complicated, it may become costly and more expensive than going to court.
3. Service of process: Proof that a copy of the petition was given to the other person via a Process Server.
4. Response: The one who receives the petition will then need to file a response to the petition.
5. Negotiation: If the two parties do not agree on all of the issues, they will need to negotiate their differences.
6. Trial: If negotiations do not work and the parties cannot come to an agreement, the issues will be brought up in court for a judge to decide. In a family law court, there is no jury. Therefore, all decisions are considered and made by the judge alone.
7. Order of dissolution: Officially ends the marriage and spells out every detail regarding property division, financial support, custody, etc. When the parties negotiate their own terms, they can draft this order and submit it to the court for approval. Otherwise, the order will be created at the end of the trial.
Advantages of Litigation:
● With litigation, there are clear procedural rules.
● There is a formal process for evidence and discovery.
● A court precedent can be obtained.
● There is a judicial decision when parties can not come to an agreement.
● In cases of domestic violence, litigation may provide a sense of protection.
Disadvantages of Litigation:
● Litigation requires a lot of “fact-finding” which can take a lot of time, thus lengthening the divorce process.
● Due to court and attorney fees, litigation can be very costly. Total costs can range from $30,000 up to hundreds of thousands.
● A judge makes the ultimate decision regarding the issues of a divorce. While a judge’s decision can be appealed, there is no guarantee that the decision will be overturned. Also, the appeal process adds more time and costs to the process.
● One may have to disclose damaging evidence.
● Court proceedings and reports may be made public unless sealed or redacted.
When there is a high level of conflict between the divorcing couple, litigation is an option that allows both parties to hire their own attorneys and appear in court to settle the issues, if necessary. However, the majority of these cases, roughly 90-95%, will settle out of court. That being said, the litigation process is still a long and drawn-out one.
The Stages of Litigation
1. Filing a petition: One must file a petition asking for a divorce, even if both parties agree.
2. Temporary orders: To be filed if one depends on the other for financial support, or will have custody of the children. This is an order put together to be effective in the meantime before final decisions are made in the settlement.
Contact Us Today
To talk about your situation and your options whether selling the home or doing a buy-out with your spouse. Even before the divorce proceedings begin, we can evaluate your financial situation to help you retain a large percentage of your estate or advise you on your new purchase. Call Geni Manning at 469-556-1185 or fill out our Online Request Form.