I read last week’s column and am thinking about arbitration as well. I heard that you can limit the family law issues that you agree to arbitrate and wonder if it makes sense for my situation. Right now, we have an agreement about dividing the assets but we cannot agree on custody or support. My wife thinks I don’t earn enough money and a judge is going to attribute a higher income to me. I used to earn a lot more but had a career change during the pandemic after my old company closed. I love my new job and the flexibility I have but I do earn about $50,000 less per year. I am not sure I could find another job earning at the higher rate but even if I could, it would mean I would not have the flexibility to spend as much time with our sons as I now spend. I want to be there for them and I am willing to work hard to support them. Should I agree to arbitrate and can the arbitrator decide both these issues?
Great question. Limited issue arbitration is an avenue forward for you. You could, for example, agree to a binding process with an arbitrator so that the arbitrator decides the limited issues in dispute, which in your situation, sound like a parenting plan for your children, as well as a dispute around what you can or should be earning, which may or may not impact support. The only concern in deciding issues piecemeal is that in some situations, one could have an impact on the other. For example, if you had an arbitrator deciding your entire divorce, they could decide to give your wife a little more from the marital estate in exchange for a break on support you might otherwise pay if you were earning $50,000 per year more as you used to.
But if you’ve already agreed to divide the marital estate in half, the arbitrator won’t have the ability to do something creative like this and will simply be faced with deciding the two issues you present to him or her, independent from what you have otherwise agreed to.
Perhaps mediation, which is a non-binding process, might be a better avenue for you if you want to maintain the ability to be creative and deviate as may be necessary from the agreements you already have to enable resolution on the case as a whole. But if you do not think you will be able to agree on everything with the assistance of a neutral mediator, and/or if you want finality quickly, arbitration is the way to go.
Just beware, the best interest of the children is, by statute, something that must be determined by a judge. So be prepared for the judge who ultimately approves an arbitrator’s award to look closely at the parenting component before adopting the arbitrator’s award and finalizing the divorce judgment.