Matrimonial Arbitration

• Pages: 309
• Publication year: 2021

Connecticut Bar Journal Volume 65.

65 CBJ 309. MATRIMONIAL ARBITRATION

MATRIMONIAL ARBITRATION

By ALFRED R. BELPME(fn*)

The traditional approach to resolve certain types of private disputes may not be the most desirable.(fn1) That approach is to resort to the courts with their full panoply of power. Exhaustive and time consuming procedural provisions must be observed, while there are often overcrowded dockets and attendant delay. This causes considerable financial outlay, not only for the parties to the dispute but also for the public purse, which has to meet the costs of maintaining the existing system. There is also the belief that some disputes can be resolved more adequately in a less formal and adversarial setting.

Alternatives to the traditional approach, such as arbitration, are well established in Connecticut in the fields of labor relations and international commercial transactions, but interest has now developed with respect to using such alternatives to resolve family related issues. The purpose of this article is to explore the feasibility of arbitration as an alternative method of dispute resolution in Connecticut.

I. DEFINITION OF ARBITRATION

The term "arbitration" will be defined as an adjudicatory process, whether private or public, by which parties either agree to submit or are compelled to submit any legal, factual or potential dispute to a neutral person or persons, not directly connected to the courts, whose function is to receive submissions thereon and to resolve the dispute

Matrimonial arbitration is a process whereby family law controversies are resolved by a single person or panel of persons outside the traditional judicial system. Arbitration is voluntary. It allows the parties and their attorneys to select the person orpersons to act as 'judge' or to select the process by which the judge is chosen. The parties may establish their own procedural and discovery rules and ma make them as simple or as elaborate and detailed as they (Keem appropriate. This process should be efficient, avoiding long court delays, common in certain jurisdictions. The parties may establish proceedings which are formal or informal, scheduling the proceedings at mutually convenient times. In addition, they may agree that the decision of the Arbitrator is binding and non-appealable, or (state law permitting), they may agree that there is a limited or full right of appeal. (One alternative is to agree that the award of the arbitrator will stand in the same posture as a decision of a trial court judge and be appealable to the State Court of Aps~eals or Su reme Court in the same manner as if the case ha proceedes to trial before a judge.) The process should be less traumatic than litigation because it is a private proceeding(fn2)

II. USES OF ARBITRATION

Why arbitrate a domestic relations dispute? The answer lies primarily in three criticisms of the American judicial system. First, some parties to a divorce or custody case justifiably fear that judges do not have time to examine their cases thoroughly because of crowded dockets and the resulting pressure to move cases; there is also some fear that the judges have not been trained to handle intricate issues involving child custody and marital financial areas. Second, some parties fear the power of a judge, whom they have not met and over whose selection they had little or no control, to determine the course of their lives based on a limited amount of contact and subjective observation. Finally, some parties wish to avoid the escalation of hostilities which accompanies many trials. Even those who intend to divorce in a responsible and equitable manner find that their best intentions are lost in the adversary process, whether negotiation or litigation. In light of these disadvantages, arbitration is viewed by many as a reasonable alternative to the judicial system's method of resolving marital and custody disputes.

Arbitration's legal status is grounded on the common law, state statutes or both. With the increasing complexity of modern society, arbitration has become acceptable in labor relations, community relations, commercial transactions, and some medical malpractice cases. Most states have some type of arbitration statute. Modern arbitration statutes have seven basic elements: (1) agreements to arbitrate existing and, in some cases, future disputes are made enforceable; (2) courts are given jurisdiction to compel or to stay arbitration; (3) courts are given jurisdiction to stay litigation when one party to an arbitration dispute attempts to litigate rather than arbitrate; (4) courts are authorized to appoint arbitrators when the parties failed to provide a method of appointment in their arbitration agreement; (5) a summary procedure is provided for court confirmation of awards and for court vacation, modification, or correction of awards on limited statutory grounds; (6) courts are authorized to enter an enforceable judgment upon awards as confirmed, modified, or corrected; and (7) the parties are given the right to appeal an arbitration decision or award.(fn3)

III. DECISIONAL LAW OF ARBrMATION IN FAMILY DISPUTES

A. Outside of Connecticut

Decisional law on the arbitration of family disputes is sparse. Despite its limitations, the New York family arbitration case law might be the best indication of how courts throughout the United States will respond to the arbitration of separation and divorce agreements today.

Generally, courts have upheld provisions for arbitration of disputes concerning alimony or spousal maintenance. Child support or support of...