The strange case of arbitrating divorce disputes

The arbitration of issues arising in a divorce is a legally complex, if not confused, matter. New legislation in 2007 complicated the matter...

The arbitration of issues arising in a divorce is a legally complex, if not confused, matter. Divorces must be granted by the state, and the Superior Courts have exclusive jurisdiction, but parties are free to submit their divorce-related disputes to arbitration. The few recent cases of this type have involved the division of marital property, and presumably such arbitrations are governed by the Georgia Arbitration Code. See Ciraldo v. Ciraldo, 280 Ga. 602(1), 631 S.E.2d 640 (2006) (assuming without deciding that the GAC is applicable). However, to be an effective part of the final divorce decree, does a party merely have to confirm the award, or must the award be adopted by the court and incorporated into the decree? It would appear that courts must exercise their oversight powers to insure fairness in the final settlement. In Page v. Page, 281 Ga. 155, 635 S.E.2d 762 (2006), the Court held that a settlement agreement reached prior to arbitration and incorporated into the arbitrator’s award must be reviewed by court before being incorporated into final decree. Thus, the standards for modifying or vacating an award in such cases are going to diverge from those under the GAC. Completely ignoring the standards for judicial review in modifying or vacating an award, the Court in Barton v. Barton, 281 Ga. 565, 639 S.E.2d 481 (2007), examined whether or not the arbitrator had applied the prevailing rule for the valuation of stock options.
In Page v. Page, the Court narrowly avoided the question as to whether matters of child support and custody were, as a matter of public policy, capable of being a subject of arbitration. 281 Ga. 155, at 156 n. 3. Subsequent legislation in 2007 expressly permitted the use of binding arbitration on issues of child custody, visitation, parenting time, and parenting plans. O.C.G.A. § 19-9-1.1. The relationship of this code section to the provisions of the GAC are unclear; however, this section specifically provides: “The arbiter's decisions will be incorporated into a final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child, the arbiter's award would not be in the best interests of the child. In its judgment, the judge may supplement the arbiter's decision on issues not covered by the binding arbitration.”