“OPT OUT” – DIVORCE WITHOUT COURT - Arbitration As An Alternative To The Traditional Court System

by Jaburg Wilk

It is now common for divorcing spouses to seek means of resolving issues in their family law proceeding outside the traditional court system.  As in many jurisdictions, the overwhelming numbers of cases and limited judicial resources in the Maricopa County Superior Court in the State of Arizona makes it almost impossible to afford litigants adequate time to present their positions.[1]  One alternative to consider is arbitration.  Arbitration is a process that is voluntary, meaning both parties must agree in order for it to occur.  Once the parties agree to arbitrate, the process is governed by Arizona's Revised Arbitration Act.  In our practice we often consider arbitration as a way to help our clients obtain favorable outcomes by opting out of the traditional family law court system. 

Once an agreement to arbitrate has been entered into, an arbitrator must be selected.  The arbitrator is a neutral third party engaged by the divorcing spouses to make decisions.  It would not be inaccurate to think of an arbitrator as a private judge; the arbitrator is paid a fee, typically on an hourly basis, for the time spent in the process.  Unlike a mediator, who lacks the authority to decide anything, the arbitrator will be empowered by a written document or court order to decide specific issues or perhaps to decide all of the issues relating to the divorce proceeding. 

Having the ability to select an arbitrator can be advantageous to the parties because a person can be selected who has specialized knowledge that relates to their dispute.  For example, if a business or professional practice is being valued, an arbitrator can be chosen who has the background and experience to understand the issues relating to the valuation process. 

An arbitration hearing is very similar to a traditional trial in court.  There are rules that govern the presentation of evidence, the scope of the testimony, cross-examination, the issues to be decided and the arbitrator can have the power to compel the exchange of information and compel adverse witnesses to attend and testify at arbitration hearings. 

Arbitration affords flexibility not found in the traditional court system.  For example, in traditional litigation, the parties must comply with existing court procedures, requirements and rules.  In arbitration, the parties can agree on the requirements and the rules that will apply to their process which provides an opportunity to create efficiencies not found in the traditional system. 

While arbitrators hold and conduct hearings that are much like a trial before a judge, the hearings occur in private offices instead of in a courtroom and are therefore kept private.  The arbitration process is more convenient than the traditional system.  Unlike a judge burdened with a caseload who likely will impose artificial time constraints on the litigants, arbitration hearings are set at a time and place that are convenient for the parties and witnesses.  Where issues are complex, it is often difficult in the judicial court system to obtain enough time to present all of the relevant evidence.  With arbitration, the arbitrator will typically give the parties as much time as they need to fully present their case. 

One significant difference between arbitration and other alternative dispute resolution processes that involve engaging someone to act as a decision maker is the right of appeal.  A party has very limited grounds to seek to have a court vacate or modify an arbitrator's award.  Generally, if there are no irregularities in the proceedings and there has been no fraud in the hearing process, the arbitrator's award is going be found by a court to be binding and a judgment adopting the arbitrator's award will be entered.  With that caveat, opting out by agreeing to arbitrate can be especially effective in complex cases where more time and focused attention are necessary than the traditional court system provides.  That coupled with the advantages of arbitration in terms of convenience, time and privacy often make it an attractive alternative to fully litigating issues in a divorce in a traditional court proceeding.

[1] See my article “Opt Out” – It Might Be to Your Benefit to “Opt Out” of the Family Law Court System in Arizona. http://www.jaburgwilk.com/Media/Default/PDFs/Service%20PDFs/MXR_Opt%20Out%201.pdf


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jaburg Wilk | Attorney Advertising

Written by:

Jaburg Wilk

Jaburg Wilk on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.