North Carolina Family Law Arbitration

NC Family Law Arbitration

The North Carolina Family Law Arbitration Act provides the ability to use arbitration instead of court hearings to resolve disputes relating to alimony, child custody, and child support.

Aristotle is reputed to have said:

“Equity is justice in that it goes beyond the written law. And it is equitable to prefer arbitration to the law court, for the arbitrator keeps equity in view, whereas the judge looks only to the law, and the reason why arbitrators were appointed was that equity might prevail.”

NC Family Law Arbitration Facts:

Couples may agree to arbitrate any controversy other than the divorce.

Prenuptial agreements may be considered written agreements to arbitrate except in matters relating to:

Minor Children
The actual divorce
Rights and responsibilities that may not be modified due to statutory laws

NC Arbitration Rights

When a couple agrees to arbitrate their disagreement, they may waive different aspects of the arbitration rules pertaining to their situation. They may also elect to vary the effect of submitting to arbitration. Waivers must be in writing.

There are significant restrictions on what can be waived prior to the time a controversy arises. For example, any portion of a prenuptial agreement requiring the waiver of any of the following rights or responsibilities of parties involved in arbitration will not be honored:

The right to submit may not be waived
The right to be represented by counsel (an attorney) at any hearing or proceeding may not be waived

The right arbitrators have to:

Administer oaths
Issue subpoenas
Take dispositions
Enforce provisions of law compelling a person to testify or submit evidence

The arbitrator’s disclosure requirements:

Relating to a financial or personal interest in the outcome or an existing or past relationship with any of the parties to the agreement or their counsel, representatives, witnesses, or other arbitrators.
Facts the arbitrator learns after being appointed that a reasonable person would consider likely to affect the impartiality of the arbitrator
The right to timely objection to the appointment or continued use of an arbitrator based upon a required disclosure
The grounds for vacating an award when an arbitrator is objected to for cause, or
The grounds for vacating an award if the arbitrator failed to disclose facts he or she was required to disclose
The presumption that an arbitrator did not act with impartiality if he or she failed to disclose when disclosure was required

The arbitrator’s right to modify or correct an award for the following reasons:

Based on a miscalculation of figures, or an evident mistake in the description of a person, thing, or property referenced in the award
When the award is on a matter not submitted to arbitration
When the award is imperfect in a matter of form that does not affect the merits of the controversy
Before a final award is made
To clarify the award

The ability to vacate an award as the result of:

Corruption, fraud, or other undue means
Evident partiality by an arbitrator who should have been neutral
Misconduct that prejudices the rights of a party to the arbitration
The absence of an arbitration agreement and the hearing was objected to on those grounds
The arbitrator exceeding his or her powers

The arbitrators:

Refusal to postpone a hearing when postponement was justified
Refusal to hear material evidence to the controversy
Violating other rules applicable to arbitrators

The application to vacate an arbitration award must be made within 90 days of the award or 90 days of when fraud, corruption or other undue means is known or should have been known.

The fact that a court could not, or would not, order the award is not grounds for refusing to confirm an award.

The right to challenges arbitration awards based on agreements made before an award is made will be allowed.

The agreements that attempt to waive rights that cannot be waived are not void. The agreement will be read as if the sections that are not allowed do not exist. Other than the areas that may not be waived, a party to an agreement to arbitrate may waive requirements related to arbitration if the agreement is in writing.

Interim Relief and Interim Measures

Interim relief may be sought from a court when the arbitrators have not yet been appointed or when they are unavailable

Courts may order:

Attachment or garnishment
Temporary restraining orders
Preliminary injunctions
An order for claim and delivery
Appointment of a receiver
Delivery of money or other property into court
Notice of lis pendens
Any relief permitted by Federal law or treaties with the United States
Other orders required to preserve assets or documents that would prejudice the effectiveness of the arbitration

Arbitrators who have cause to suspect that any child is abused or neglected shall report the case to the department of social services.

Benefits of NC Arbitration in Family Law

NC Arbitration can provide numerous benefits in comparison to a court hearing.

Evidence submitted during arbitration is confidential.
The cost of arbitration can be lower than a court hearing.
The evidence that is allowed is more relaxed than in court hearings
Arbitration may be faster than a court hearing
Arbitration schedules consider the needs of the parties involved so someone who has out of town commitments can schedule around their other obligations
Arbitration is less formal and may be less stressful than a court hearing

NC Arbitration Drawbacks

Arbitration has a few drawbacks.

Unless there was a procedurally incorrect process used or other unacceptable behavior on the part of the arbitrator, the award cannot be appealed
A third party makes the decision, just like during a court hearing. Collaboration Law Procedures and mediation allow the parties to contribute to the decisions

You are entitled to counsel during arbitration related to your divorce . When important matters relating to equitable distribution , alimony , child custody , and child support are being decided you deserve the benefit of having a professional on your side.

At McIlveen Family Law Firm, we realize the uniqueness of everyone’s circumstances. For specific questions about your situation, you may schedule a consultation with us so we can help you understand your options. You can then make an informed decision on whether arbitration is the right course of action for you to take.

North Carolina Family Law Offices

Gastonia Office

174 S. South Street Suite 301
Gastonia, NC 28052
(704) 865-9011

Charlotte Office

400 S. Tyron St. Suite 950
Charlotte, NC 28202
(704) 865-9011

Raleigh Office

434 Fayetteville Street Suite 2300
Raleigh, NC 27601
(919) 372-3670

Practice Areas

Adoption
Alienation of Affection
Alimony
Child Custody
Child Support
Divorce
Domestic Violence
Grandparent’s Rights
Mediation
Military Divorce
Prenuptial Agreements
Property Division
Separation
Wills