Should You Consider Binding Arbitration In Your Divorce Case

Reaching a settlement in a routine divorce can be expensive. Going to trial in a divorce case can be financially prohibitive for all but the wealthy. Arbitration may be more affordable and better way to resolve a divorce for most people.

Arbitration in a divorce case is when two people hire a neutral third person to hear the facts of their case after which he or she will issue a decision, or ruling, to which the litigants will be bound. Often times the ruling is not subject to appeal.

In South Carolina the arbitration process is governed by the Uniform Arbitration Act. Arbitration will usually take place much sooner than a trial because the parties will not be competing with other cases on the court docket. The parties can select an arbitrator of their choice, a person who may be uniquely qualified to hear the facts of their case, rather than relying a government appointed decision maker whose name is “judge”! Arbitration will also be vastly less expensive as the process is much less formal than a courthouse trial.

Cases that we deem uniquely suited to the arbitration process are asset division cases and other property issues. Much of the evidence regarding disputed property can be difficult and costly to prove in a courthouse trial due to the Rules of Civil Procedure and Evidence that must be followed strictly. Much of the cost of a courthouse trial can relate to the gathering and presentation of evidence simply to establish a claim. An arbitrator can dispense with much of the legal formalities and get right to applying the statutory criteria (SC Code 20-3-630) that must be made in order to make an equitable division of property.

Child Support is also a good area for binding arbitration.  Often the dispute will be about the amount of income one party receives upon which child support is calculated. Arbitration will streamline the fact finding process and make an efficient final determination in accord with the child support guidelines.

Custody can also be submitted to arbitration, but the arbitrator’s decision may not be binding. The South Carolina Code (SC Code 63-3-510) states that the family court “…shall have exclusive original jurisdiction…” in all cases involving children “whose custody is the subject of controversy…”. In other words, it may not be possible to “sub contract” the authority of the family court to make custody decisions to a 3rd party. At the very least an arbitrator’s award in a custody case should be subject to appeal either directly to the Family Court or the Court of Appeals.

Alimony is another issue where an attorney must be cautious when considering the option of  binding arbitration. In South Carolina our judges have the authority to order permanent alimony. Alimony is one of the most appealed issues in the family court. An attorney who submits a permanent alimony claim to binding arbitration and then loses, without an opportunity to appeal, may have done his client a great disservice at the very minimum.

Arbitration can be very helpful in deciding issues effecting property or determining income for child support purposes. These are clear cut issues with evidence that is generally straightforward to present. Custody and alimony are more nuanced and subjective, and a bad ruling by an arbitrator may leave a family stuck for years to come without a good remedy.



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