Heads up! There may soon be a new way to proceed through family law cases in Montana.
Currently in Montana, there are only a few ways a couple can finalize a divorce. The couple can:
- Have a trial
- Have a settlement conference
- Reach an agreement on their and request that the court accepts that agreement
Each of these 3 options requires one or both of the parties to file for a divorce in court.
Senate Bill 104, which is before the Montana Senate Judiciary Committee right now, proposes to allow Montanans to conduct divorce proceedings through private arbitration rather than through the state district court.
What is private divorce arbitration?
SB104 would adopt the Uniform Family Law Arbitration Act. This act has been adopted by Arizona, North Dakota, and Hawaii. Some other states also allow parties to divorce through arbitration but have not enacted the Uniform Act.
When parties arbitrate a matter, they select a person to act as an arbitrator to help them resolve their matter. Like a mediator, an arbitrator is usually an attorney or retired judge. And like a judge, an arbitrator’s decision on a case is final. In most cases, the parties cannot appeal an arbitrator’s decision the way a judge’s decision can be appealed to a higher court.
However, under the proposed language of SB104, it appears that the parties to a family law case decided by arbitration would likely be able to appeal the arbitrator’s decision.
Arbitration has been used in other kinds of cases for many years. Some benefits to arbitration include that it can be:
- Less expensive than a trial
- Quicker than waiting to get on the court’s schedule.
Another benefit of arbitration is that it is a truly private process. In a court proceeding, documents filed with the court, and all proceedings, are open to the public.
Arbitration proceedings, however, are completely private.
Under the proposed law, arbitrators would have the ability to send a case to the district court if they felt it was necessary. This might be the case for some proceedings involving domestic violence or when an imbalance of power exists between the parties.
Is arbitration better than going to court?
Neither arbitration nor going through the court is necessarily better. There are a number of factors you will want to weigh carefully before deciding what is right for you. These factors include the complexity of your case, the kind and amounts of assets that need to be divided, whether there is a protection order in place for either spouse, and the degree of differences between the spouses’ goals for the outcome of the divorce. In order to arbitrate a family law case, both parties to the case must agree to go through arbitration.
Can child custody be arbitrated in Montana?
With the passage of the Uniform Family Law Arbitration Act, all family law disputes, including child custody, can be arbitrated in Montana. The laws concerning child custody are the same whether custody issues are resolved through mediation or through the court. The difference is the road that you take toward the resolution of the issues.
Who pays for the cost of arbitration in Montana?
Typically, both parties will share the cost of arbitration. However, there may be some instances when one spouse will cover the cost of the arbitration for both spouses.
Do I need an attorney for a divorce arbitration in Montana?
While you do not need an attorney for a divorce arbitration in Montana, going it alone can put you at significant risk. You will want an experienced attorney at your side who can advocate for your goals and needs, and who can help you to achieve the best possible outcome under the law.
Questions about your family law case?
If you have questions about how to proceed with your family law case, you can feel comfortable and confident in calling the Judnich Law Office at (406) 721-3354 or contact us online. We will work with you toward solutions that will fit your family’s needs.
Marty is a former criminal prosecutor in the Cascade County Attorney’s Office and now uses that experience to defend those accused of crimes. A University of Montana School of Law graduate, Marty focuses his practice on personal injury and criminal defense and is a premier DUI defense attorney. He is also well versed in the insurance claims industry and has negotiated significant settlements with nearly every major insurance company.