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Arbitration in Family Law Cases

7/27/2023

Arbitration is an alternative dispute resolution method that allows for parties to have their family law issues resolved without going to court.

North Carolina’s Family Law Arbitration Act (N.C.G.S. 50-41) allows couples to choose to arbitrate any or all issues arising from a separation or divorce, except for divorce itself. This can include any or all of the following issues: Equitable Distribution, Alimony, Child Support, or Child Custody. Arbitration is not a mandatory requirement and is something that the parties must mutually agree to before submitting an issue to an arbitrator. The parties agree to submit an issue or issues to a neutral third-party arbitrator, who acts almost like a private judge by hearing evidence and providing a binding or non-binding decision. The parties typically share the cost of the arbitrator unless their agreement allows the arbitrator to allocate the costs differently.

South Carolina has not adopted a family-law specific arbitration act like North Carolina, but parties may mutually agree to utilize arbitration as an alternative dispute resolution for property and alimony issues under the Uniform Arbitration Act, which South Carolina has adopted. South Carolina case law has held that it is not permissible to submit child custody and child support issues to binding arbitration with no right to judicial review. Child custody and child support issues may (or, when there is a lawsuit pending, must) be submitted to mediation as an alternative dispute resolution prior to trial. In South Carolina, arbitrators can be certified by South Carolina’s Board of Arbitrator and Mediator Certification, but parties can choose an arbitrator who is not certified by the Board. All arbitrators must follow the Alternative Dispute Resolutions Court Rules and the Code of Ethics for Arbitrators that South Carolina has adopted.

Arbitration Process
In arbitration, parties have a private trial in front of an arbitrator who issues a binding or non-binding decision that the parties must then follow. Similar to a trial in front of a judge, the parties present documentary evidence and testimony, and then the arbitrator (instead of a judge) issues a decision. An arbitrator can issue subpoenas for witnesses to appear and for production of documents or records needed. The arbitrator administers oaths for witnesses to testify and can take depositions, if needed. You can and should be represented by the attorney of your choosing during arbitration.

Benefits of Arbitration

Privacy. Arbitration is a private proceeding, unlike a court proceeding which becomes part of the public record. An arbitration “award” (what the arbitrator’s order is called) can be confirmed by a court if the parties agree to that. If you do not want the arbitration award to be confirmed by the court and become a public record, you can choose to enter into a private contract at the end of the arbitration process instead.
Arbitrator selection. You can hand-select your arbitrator, which allows you to choose someone experienced in your unique issues. This can be a great advantage because you don’t get to choose your judge in court. There is not one single certifying or accrediting body for arbitrators, but typically arbitrators are highly experienced family law attorneys (sometimes former judges) who are also trained in alternative dispute resolution. South Carolina has specific requirements for arbitrators who are certified by the South Carolina Board of Arbitrator and Mediator Certification to follow. Your lawyer will have suggestions for arbitrators who could be a good fit for your case.
Quick resolution. You can generally get in front of an arbitrator for a final, binding decision much more expeditiously than scheduling a hearing in front of a judge. Court calendars are notoriously full and sometimes backlogged.
Convenience. Arbitration is far more convenient, as you can set the time and date that works for you, your spouse, your attorneys, and any other witnesses who might need to be present.
Cost-effective. Arbitration is generally going to be a more cost-effective option than a court hearing or trial. Saving time by getting a final decision sooner means saving additional money, too.
Less formal. Arbitration is less formal than a trial in front of a judge and typically takes place in a more casual atmosphere, like the conference room of a lawyer’s office. The atmosphere can make the process less stressful than a court hearing and less adversarial.

Disadvantages of Arbitration

The decision can be binding. If the parties and counsel agree to binding arbitration, the arbitrator’s decision is binding and there is typically no right to appeal the arbitrator’s decision. If you are unhappy with the arbitrator’s decision, there’s sometimes little recourse to change it. In North Carolina, Child Custody and Child Support arbitration awards can be vacated if the court determines that the award for child support or child custody is not in the best interest of the child.
Enforcement. If your spouse does not adhere to the arbitration award, you will have to go to court to enforce the award. An arbitrator cannot hold a party in contempt for violating the arbitration award.
Cost. The most cost-effective way to resolve domestic issues with your spouse is to come to a negotiated settlement without too much back and forth between lawyers to finalize the settlement. When you involve third parties, like an arbitrator, to resolve your domestic issues it does increase the cost of resolving your marital issues but, as discussed above, arbitration is typically still more cost-effective than going to court.

If you are interested in arbitration or other alternative dispute resolution mechanisms, please reach out to our office. As a firm, we focus on out-of-court resolutions for our clients and arbitration is a great option for many clients. Lindsey is available and qualified to mediate or arbitrate your case in North Carolina or South Carolina.

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Before "I Do" Part III: Important Discussions to Have Before the Wedding About Unexpected Events

7/20/2023

Today’s post is the final installment in a three-part series about conversations to have with your future spouse before you get married. Today’s blog post focuses on discussing the unexpected with your future spouse. While these unexpected events are unlikely to occur, it is good to have a discussion with your spouse to express your wishes and desires if an unfortunate and unexpected event occurred.

What would happen if you or your partner became incapacitated or disabled?
What type of plans and understandings do you want to have in place for caregiving, finances, and handling other affairs, if the worst were to happen?
Do you want to execute a Healthcare Power of Attorney, Durable Power of Attorney, or will to provide direction about healthcare and financial decision-making and your estate?
Are you or your partner likely to receive an inheritance during the marriage? How would you like to use or save that inheritance?

The answers to these conversation starters may lead you to decide you would like to have a Prenuptial Agreement in place or complete your estate planning. A Prenuptial Agreement can solidify your financial agreements regarding which funds and accounts remain separate property of each spouse after marriage and which will become marital property held jointly by the spouses. You may also want to consider executing a Will, Healthcare Power of Attorney, or Durable Power of Attorney to provide for your spouse or children from a previous relationship, and to prepare for the worst-case scenario (just in case). Please reach out to our office so we can assist you. We are here to guide you on the legal aspects of your journey to marriage and beyond so you can focus on enjoying your new life.

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Before "I Do" Part II: Important Child-Related Discussions to Have Before the Wedding

7/13/2023

Today’s post is the second in a three-party series about important discussions to have before you get married. The conversation topics and questions for today are all about kids. Children will change your life and it is wise to discuss the child-related topics below before you get married. These conversations will lead to a stronger relationship and marriage with your future spouse.

Do you or your partner have children from prior relationships? How will their expenses be handled after your marriage?
If you plan to have children together, what would your ideal childcare situation be? Do you want one parent to leave their career and stay home? Consider how this might impact your future financial arrangements.
Do you want to send your future children to public or private school? How will you fund private school if that is your choice?
How do you and your future spouse feel about family traditions with your children?

The answers to these conversation starters may lead you to decide you would like to have a Prenuptial Agreement in place or complete your estate planning. A Prenuptial Agreement can solidify your financial agreements regarding which funds and accounts remain separate property of each spouse after marriage and which will become marital property held jointly by the spouses. You may also want to consider executing a Will, Healthcare Power of Attorney, or Durable Power of Attorney to provide for your spouse or children from previous relationship, and to prepare for the worst-case scenario (just in case). Please reach out to our office so we can assist you. We are here to guide you on the legal aspects of your journey to marriage and beyond so you can focus on enjoying your new life.

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Before "I Do" Part I: Important Financial Discussions to Have Before the Wedding

7/6/2023

Wedding bells are ringing, you’re counting down the days until you get to marry the love of your life, and finalizing all the fun details of your upcoming nuptials. While you’re enjoying the emotional high of your engagement, don’t forget to have the important conversations about life after the wedding to make sure you’re both on the same page—conversations about your marriage and future. The wedding is only one day of your life. Your marriage is “until death do us part” (hopefully)! Today’s post is the first in a three-part series about important discussions to have before your wedding day.

As family law attorneys, we often see marriages break down due to poor communication and differences in finances and childrearing. Allow the conversation starters listed below to be an opportunity to draw closer as a couple and solidify your relationship’s foundation—and ensure you won’t have any unexpected surprises regarding financial and legal plans after the wedding day. Consider each question carefully and discuss with your partner how you want to handle each issue. Even better, reach out to a marriage counselor or therapist to facilitate these conversations during a few premarital counseling sessions.

Are you spenders or savers?
How do you want to spend “fun money” (disposable income)? What are your priorities in spending disposable income (travel, luxury items, home projects, etc.)?
Do you have debt you will bring into the marriage? Think about and discuss all credit cards, student loans, car loans, mortgages, or other personal debt.
Do you want each partner’s separate debt to remain separate? If there is significant debt and you want it to remain separate, do you want to protect the other partner from that debt by executing a prenuptial agreement prior to your wedding day?
What amount or type of debt is acceptable to each of you, if any?
Do you have significant assets (bank accounts, investment accounts, retirement accounts, and so forth) you will bring into the marriage?
How do you want to contribute to your retirement savings, emergency fund savings, other savings accounts after marriage?
Do you own a home or other real estate holdings that you will bring into the marriage? Do you want that property to remain separate? Consider executing a Prenuptial Agreement prior to your wedding day.
Do you have personal property or household items that you want someone besides your partner to inherit if you pass away unexpectantly? Consider executing a will before or soon after marriage.
Do you hold a whole life or term life insurance policy? Who will be named as beneficiary?
Do you own your own business or have an ownership stake in a business? Consider executing a Prenuptial Agreement if you want that business or ownership stake to remain separate property.
Who will you name as beneficiary on retirement accounts and pension plans? For many plans, you will need consent from your spouse if you want to name anyone other than your spouse as the beneficiary of retirement accounts and pension plans.
How do you want to set up your bank/investment accounts after marriage? Do you plan on holding joint bank accounts, separate bank accounts, or a combination of both?
If you are going to have separate accounts, how will you handle joint expenses like shared household bills and rent or mortgage payments?

The answers to these conversation starters may lead you to decide you would like to have a Prenuptial Agreement in place or complete your estate planning. A Prenuptial Agreement can solidify your financial agreements regarding which funds and accounts remain separate property of each spouse after marriage and which will become marital property held jointly by the spouses. You may also want to consider executing a Will, Healthcare Power of Attorney, or Durable Power of Attorney to provide for your spouse or children from previous relationship, and to prepare for the worst-case scenario (just in case). Please reach out to our office so we can assist you. We are here to guide you on the legal aspects of your journey to marriage and beyond so you can focus on enjoying your new life.

Schedule a consultation

Divorce Differently

Arbitration in Family Law Cases

Before "I Do" Part III: Important Discussions to Have Before the Wedding About Unexpected Events

Before "I Do" Part II: Important Child-Related Discussions to Have Before the Wedding

Before "I Do" Part I: Important Financial Discussions to Have Before the Wedding

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