“We’re goin’ to the ar-bi-tra-tion and we are gonna get di-vooo-oorrr-cccedd” (to the tune of “Going to the Chapel”)

By Tonya Graser Smith

The biggest common confusion in divorce in North Carolina is that there’s a difference between the divorce itself (the legal termination of the marriage) and divorce-related issues such as child support and equitable distribution.  In fact, if you’re seeking divorce and (something else) in North Carolina, there usually will be two separate court files.

While only a North Carolina judge can sign the divorce order dissolving the marriage, the parties can agree to resolve the other issues arising out of their divorce by using mediation or arbitration.  In doing so, the parties almost always expedite the resolution process and exercise greater control over its timing.  Instead of being beholden to the government and the courthouse processes, the parties create their own resolution process.

Most often, North Carolina couples use arbitration to resolve the following:

  1. Temporary matters that need immediate attention, such as:
  2. Who moves out?
  3. Temporary custody schedule for the children
  4. What school will the children attend?
  5. Temporary child support
  6. Temporary spousal support
  7. Who pays debts short term?
  8. Who pays mortgage short term?
  1. Long term matters that need more through exploration, such as:
  2. Should we sell the house?
  3. Are the children adjusting okay?
  4. Who should stay in the house long term?
  5. How do we divide our retirement?
  6. How are we going to pay off debt?
  7. Alimony
  8. Permanent child support
  9. Permanent custody schedule for the children
  10. Anything else that needs resolution, including stuff a judge would not be authorized to decide

How do parties elect to use arbitration?

During or after marriage, spouses can agree to submit any issue, big or small (except the actual divorce) to an arbitrator.  Before a marriage, through prenuptial agreements, the parties can agree to resolving divorce-related disputes via arbitration.  Most of my prenuptial agreement clients are opting to clauses to their prenuptial agreements stating they will stay out of court in the event of divorce and instead agree to use arbitration.

With arbitration, the parties enjoy great flexibility and control over the process.  For example, when the spouses decide to arbitrate their divorce, they can agree on the rules that govern this arbitration itself.  In court, of course, the rules are voluminous, occasionally antiquated, sometimes confusing, and unchanging.  There’s hearsay, the “Rules of Civil Procedure”, OBJECTION FOUNDATION!, and all types of barriers to the judge hearing about certain things in a trial.  When you go to court, no judge will ask you ahead of time which rules you’re agreeing to be applied!  With an arbitrator, on the other hand, the parties agree to the framework to be applied to the information presented in the arbitration.  If we use arbitration in your case, we can customize the rules for the particular needs of your case.  In doing, we allow the arbitrator the ability to focus on the most important issues and give you the finality you seek.

I hope to see more folks, “goin’ to the ar-bi-tra-tion … to handle their di-vooo-oorrr-ccce”.