New Jersey’s Dispute Resolution Options, Part 2: Divorce Arbitration

Opinions and, yes, even decisions made by impartial outside parties are critical when you’re facing a divorce in New Jersey. This is where New Jersey’s Dispute Resolution option of divorce arbitration comes in. Divorce arbitration is the voluntary process where the parties agree to submit one or more disputed issues to a neutral third party for a final and binding decision. Typically, both parties are represented in the arbitration by separate counsel.

The New Jersey Divorce Arbitration Process

Here is the New Jersey divorce arbitration process in simple terms:

1. The attorneys for the parties narrow down and define the issues to be resolved by the arbitrator.
2. The parties engage the arbitrator and agree upon the subjects to be decided, the timing, the costs, the schedule, and other details. A plan, similar to a pre-trial order, is developed in preparation for the arbitration hearing.
3. The arbitration hearing may be relatively informal, controlled by the arbitrator, with somewhat relaxed Rules of Evidence, or it may be as formal as a trial. Those involved are advised to negotiate all terms of an arbitration agreement, including the applicability/non-applicability of statute or case law and scope of review.
4. The arbitrator hears the positions of both parties, determines the facts, applies the law, and makes a binding decision which becomes the substance of the divorce judgment.
5. The parties present the award to the Court for a confirmation and a Judgment of Divorce.

Divorce arbitrations are confidential and private. Neither the proceedings nor the records are available to the general public. An arbitrator has the same immunity as a judge of the state acting in a judicial capacity.

There is limited Appellate review (which is a higher court reviewing the final decision for errors) for divorce arbitration because arbitration awards are only set aside if:

• procured by corruption, fraud or undue means;
• the award displays evident partiality or corruption in the arbitrator;
• the arbitrator refuses to hear pertinent material evidence or committed other prejudicial misbehavior; or
• the arbitrator exceeded or imperfectly executed his powers.

Retainer Agreements for Divorce Arbitration in New Jersey

Divorce litigation and the high emotions which accompany it have generated an abundance of fee disputes. The Courts have enacted a separate rule for divorce attorneys in divorce actions, which requires a written retainer agreement. The Rules Governing the Courts of the State of New Jersey dictate in R. 5:3-5 that the attorneys in connection with family actions provide a written retainer agreement which must be signed by the attorney and the client. A copy must be given to the client along with a statement of the client’s rights and responsibilities.

Whatever your unique situation, if you’re facing a divorce, you need to know your options – like divorce arbitration and divorce mediation. Contact Gruber, Colabella, Thompson, Hiben & Montella for a free consultation.