If you want a divorce but want to avoid going to court, you have other legal options. Arbitration is an out-of-court form of alternative dispute resolution (ADR) that can be used by spouses who have trouble communicating or cannot reach a compromise regarding child custody, spousal support, or property division. Choosing arbitration in Texas divorce proceedings can provide a confidential and efficient way to resolve conflicts, allowing couples to make important decisions with the guidance of a neutral third party.
Divorce is often emotional and heated. If you and your spouse cannot agree on important matters about the dissolution of your marriage, you might benefit from arbitration. Our team can help. Smith Family Law can help you understand your rights and protect your interests during a turbulent divorce. Contact us today for a compassionate consultation with a skilled Austin divorce lawyer.
What Is Arbitration for a Texas Divorce?
Divorce arbitration is a meeting of the spouses and their attorneys that is overseen by an arbitrator. Arbitration proceeds much like a court hearing, with opening statements, evidence presented by either side, and closing arguments. The arbitrator reviews the documents and supporting evidence and makes a determination about the final disposition of all disputed issues.
In order for the parties to engage in arbitration in Texas, they must sign a written agreement. That agreement will state whether the arbitrator’s decision is binding or non-binding.
Texas permits both pre-nuptial and post-nuptial agreements to include an arbitration clause.
Both spouses can voluntarily participate in divorce arbitration unless a marital agreement signed by both parties specifically indicates otherwise. While the arbitrator directs the process, each party should have legal representation to advocate for their desired outcome.
How Does Arbitration Differ from Mediation?
Mediation is a guided negotiation process, but the parties (and their lawyers) are in different rooms. The mediator will move back and forth between the parties, making suggestions for reaching an agreement, and assisting in negotiations. In arbitration, you and your lawyer are in the same room as your spouse and their lawyer, and the arbitrator doesn’t facilitate negotiations. The arbitrator acts as a judge.
Arbitration tends to be a more formal arrangement, similar to a court hearing, while mediation is usually less formal. A mediator may guide divorce negotiations but has no power to make decisions affecting the outcome. An arbitrator can have this authority if the parties agree.
Finally, arbitration isn’t subject to the same rules of evidence as a courtroom, so each party may be able to present more evidence supporting their case than they would have been able to in a court hearing.
What to Expect with the Process of Arbitration in a Texas Divorce
If you and your Texas divorce lawyer determine that arbitration makes sense in your case, then you can request that the judge allow your case to go to arbitration. The parties can agree upon an arbitrator, sign an arbitration agreement, and proceed to arbitration. The parties can also request the court to appoint an arbitrator.
Sometimes, a judge may request mandatory arbitration before hearing the case, or you may be ordered to mediation before a divorce trial.
Is Arbitration Legally Binding in My Divorce?
Arbitration is only legally binding if both spouses agree it will be before the process begins. If you’re unsatisfied with a non-binding arbitrator’s decision, you can seek a judge’s final determination.
If you agree to legally binding arbitration and one spouse does not comply, the other spouse can take them to court to enforce the arbitrator’s decision.
Selecting a Divorce Arbitrator
As long as both spouses and the court agree, anyone can serve as an arbitrator. A party must request to be appointed as arbitrator, and a judge will review their qualifications. However, in a family law case, choosing a trained arbitrator familiar with statutes of Arbitration in a Texas divorce usually works best, especially if neither spouse has an attorney or only one spouse does.
Benefits of Divorce Arbitration
Arbitration offers many benefits you may not have if you take the divorce to family law court, including:
- Selecting your own arbitrator. In arbitration, you have the option to choose an arbitrator with experience in the specific matters you need to resolve, such as dividing a shared business.
- More efficient. Arbitration speeds up divorce resolution, letting each party present their case before a neutral third party. If your district court has a backlog of cases, you may not get in front of a judge for months.
- Privacy. Court hearings are open to the public, with a record of the proceedings available to just about anyone who requests it. If you don’t wish the details of your divorce to be a matter of public record, then confidential arbitration may be a better option. Your assets, arguments in support of one partner having sole custody, or any allegations of infidelity or abuse would be a part of the court record; in private arbitration, these issues remain private.
- Less formal. Many are intimidated by court appearances, and a divorce hearing is often their first experience with the legal system. Lawyers must follow specific rules for presenting evidence in court. Arbitration, on the other hand, takes a more relaxed approach.
- More flexible process. Family law courts are bound by specific rules and procedures. There is a process of admitting evidence before the judge and restrictions on what type of documents or information can be presented as evidence. In arbitration, the rules are not as strict, and both parties can agree beforehand about whether the arbitrator’s decision will be binding. A judge’s decision is invariably legally binding and cannot undergo alteration without undergoing an extensive legal process.
- Convenient. You may miss work for court, while arbitration can occur at a time convenient for both parties.
- Cost-Effective. Going to court can be costly because it takes longer, and it’s possible that your attorney has a higher rate for a court appearance than for an office call. In addition to cutting down on the time required to prepare for a full court case and to attend court sessions and continuances over the course of several months, concluding your divorce through arbitration could be a shorter, less costly process.
Drawbacks of Texas Divorce Arbitration
One potential drawback of the arbitration process is that because the rules of evidence are not as strict, your spouse might be able to have evidence admitted against you that they would not be able to present in court. If you suspect they might attempt to present negative evidence to the arbitrator that you and your lawyer are aware wouldn’t be admissible in court, you can decide not to participate in arbitration.
Another potential drawback is the lack of an appeals process. If both parties agree that the arbitrator’s decision is legally binding, they might find themselves bound by the outcome. However, before arbitration begins, both parties can include a review option, wherein a second arbitrator can review the initial arbitrator’s decision and compare it with Texas divorce laws for accuracy and compliance. The review/appeals process can also be a private matter and not a matter of court record.
The Legal Finality of Divorce Arbitration
When both spouses agree that the arbitrator’s decision isn’t legally binding, court approval is required to make the award enforceable. Even if both parties agree to a binding arbitration decision, they will still need to file it with the court.
A Texas divorce court can review an arbitrator’s decision for potential mistakes, misconduct, or fraud.
Arbitrators must disclose potential conflicts of interest, including any business or personal affiliations with the parties involved. Not disclosing a conflict of interest might lead a family law judge to void the arbitrator’s decision.
If the arbitration agreement involves child custody or possession, then a family law judge may review the arbitrator’s decision to ensure it’s in the best interest of the child or children. A judge may overturn the arbitrator’s decision if they determine that the agreement does not reflect the child’s best interests.
Do I Need a Lawyer for Divorce Arbitration?
You don’t need to have legal representation to file for divorce or engage in arbitration to resolve issues. However, many people feel more secure when they have a lawyer looking out for their interests. A divorce attorney can advise you on your rights and potential entitlements regarding property division and spousal support.
If children are involved in the divorce, you require an attorney to construct a case explaining why your suggested custody arrangement and physical possession schedule serve your child’s best interest. Finally, an attorney provides much-needed support during an emotionally turbulent time.
Are You Considering a Divorce?
If you’ve been thinking about filing for divorce, or if you’ve already received divorce papers, arbitration of the disputed issues between you and your spouse could be advantageous. We can help. The divorce attorneys at Smith Family Law provide compassionate representation in matters of divorce and child custody disputes. Contact us today to learn more about your rights and legal options in a free consultation. Call us at (512) 675-2048.