How Long Does Divorce Arbitration Take?
Divorce poses challenges. Even when spouses agree that it is time to end the marriage, the process of divorce can raise deep-rooted conflicts. Questions about how to divide property, share child or pet custody, or handle finances arise and cause spouses to fight over these issues. As tensions can run high between a couple, it’s important to seek legal counsel as soon as possible.
Not all divorce cases end up in court. Oregon provides several ways for a divorcing couple to reach an agreement on critical issues without being forced to accept a judge's ruling on the matter. One of these options includes divorce arbitration.
What Is Divorce Arbitration?
Divorce arbitration is considered one of the dispute resolution services that Oregon Law provides. Arbitration is a structured legal process for reaching a decision when spouses cannot do it independently. Arbitration may be a viable option for many Oregon residents because it eliminates the stress of going to trial in a nearby Oregon courtroom.
Spouses are responsible for working with a neutral third party, an arbitrator, in divorce arbitration. Divorce arbitrators are highly trained legal professionals who have experience in divorce and family law. In Oregon, an arbitrator is an attorney who is licensed to practice Oregon law for at least five years.
Spouses, a judge, or a court clerk may choose the arbitrator. The court will send out a Notice Assigning Case to Arbitration and a Notice of Selection of Arbitrator Form. Here, a list of three arbitrators will appear, and the spouses will need to choose one. Each spouse can dismiss one name on the list within 14 days, and then the court will choose from the remaining names on the initial list.
Also, Oregon requires a divorcing couple to attend arbitration if the spouses cannot agree on dividing property or debts. In some Oregon counties, divorcing spouses are also expected to arbitrate custody disputes if they cannot agree.
Steps In The Divorce Arbitration Process
While every arbitration process is slightly different, most follow the same general steps:
1. A court orders arbitration. Arbitration begins when a court orders the parties to attend. In a divorce case, the spouses may ask the court to issue an order.
2. The parties and their attorneys choose an arbitrator. Spouses and their respective lawyers may work together to select an arbitrator. During this phase, the spouses can seek an arbitrator specializing in the specific questions their arbitration will address. Their lawyers may provide insight into particular arbitrators' skills, experience, and habits.
3. The arbitrator receives the case and schedules motions and hearings for the arbitration proceeding. Seven weeks is a standard interval between the date the arbitrator was chosen and the hearing date.
4. The parties and their attorneys prepare for the hearing. Each side considers the argument it wants to make and gathers evidence to support that argument. Each side must also give the arbitrator a list of witnesses who may provide testimony and a list of evidence to be presented.
5. The parties, lawyers, witnesses, and arbitrators gather for the hearing. During a hearing, the arbitrator listens to testimony, examines the evidence, and may ask questions of witnesses. Like in a courtroom trial, the arbitrator must have witnesses swear or affirm that their testimony is true.
6. An arbitrator may delay or continue a hearing to allow each side to present their case. For example, if a critical witness is sick, the arbitrator may postpone the hearing until the witness can be present.
7. The arbitrator issues a decision. Once the hearing is complete, the arbitrator decides as an "award." The decision usually appears within 20 days of the end of the hearing.
The parties may choose to accept the arbitrator's decision. Either party may appeal the arbitration award to the court, but an appeal must be filed within 20 days after the arbitration award is filed with the court.
Arbitration can be appealed, but it may have to go through a trial. Since the judge and jury do not know what the arbitrator will decide, an arbitration case is solely based on the presented evidence. The appealing party who loses the arbitration appeal must pay the other party's attorney fees and costs related to the request.
The Benefits of Divorce Arbitration
Divorce arbitration has become more prevalent in recent years. A 2020 study found that arbitration and mediation to settle divorce disputes rose 20 percent during the pandemic. Arbitration became more popular to move divorce cases forward, even when courts were closed, or court calendars were backlogged.
Divorce Arbitration Costs
Arbitration may lead to better outcomes than a court hearing or trial. One study found that divorces that went through mediation or arbitration instead of a trial, "...were significantly less likely to result in post-judgment modification, thus sparing couples and families added emotional and financial costs."
Arbitration is often less expensive than a trial. In most cases, each side pays half of the arbitration fees. While these fees vary, it's important to note that arbitrator fees are around $600 for the first four hours and an additional $150 per hour if extra time is needed. Courts often limit the total amount the arbitrator may collect in fees unless a case is incredibly complicated or time-consuming.
If either spouse cannot afford to pay the arbitrator, the court may waive the fee. If the fee is waived, the arbitrator's pay comes from state funds. Arbitration proceedings are confidential. While the arbitration award becomes part of the court record, the evidence presented and the arguments made during the hearing are not accessible to the public. Arbitration is one of several options for ex-spouses. Courts may order parties to arbitration in a divorce case if there is a property issue the parties cannot settle.
Arbitration, Mediation, and Collaborative Divorce: Which is Suitable For Us?
Divorce arbitration is one option couples can choose, or they can discuss other options like mediation, collaborative divorce, and direct negotiation. Collectively, these methods are known as alternative dispute resolutions, or ADR, because they offer an alternative to a trial. A divorcing couple may choose one or more alternative dispute resolution methods. In some cases, a court may require a couple to try one or more methods before trial.
Arbitration differs from direct negotiation, collaborative divorce, and mediation in a few key ways:
Arbitration is a More Formal Process
Arbitration involves a hearing with evidence, witnesses, and a legal decision. While mediation includes a third-party mediator, the mediator has no power to issue a decision. Both collaborative divorce and direct negotiation rely on the spouses working together. Third parties participate only to give advice.
Arbitration Ends With a Clear Decision
In direct negotiation, collaborative divorce, and mediation, the spouses may walk away without a resolution. In an arbitration, the arbitrator issues that decision - and the parties may or may not be willing to accept it.
The Structure of an Arbitration Hearing Can be Helpful
Arbitration focuses the parties' and arbitrators' complete attention on one contentious issue. This can help spouses stay organized and civilly obtain their best wishes. Mediation, direct negotiation, and collaborative divorce offer more flexibility, which may work better for some ex-spouses.
Arbitration Brings a Neutral Party with Legal Experience to the Process
In a divorce, each spouse often has a lawyer. Each side's lawyer zealously protects their own client's legal interests. An arbitrator is a neutral third party, but an arbitrator also has legal experience. This perspective can help the arbitrator decide what works for both parties and complies with Oregon law.
No one size fits all for an Oregon divorce. Each couple's specific concerns, assets and debts, worries about children, support needs, pre-and post-nuptial agreements, and vision for the future differ. Arbitration, mediation, and other tools allow divorcing spouses to find the support level to settle critical issues during a divorce. When used effectively, these tools can reduce costs and help the spouses forge an agreement both can accept.
Schedule a Consultation with an Oregon Divorce Attorney
If you're thinking about divorce or you believe your spouse is considering a divorce, reach out to the dedicated divorce and family law team at Gearing, Rackner & McGrath, LLP. Our attorneys have experience handling divorce cases and related issues, like child custody and support.
We can help you understand your options and move forward, whether you're still weighing your options, have settled on divorce, or wish to prepare yourself for your spouse's divorce decision.