Is a Private Judge or Arbitration Right for My Divorce?

Divorce is one of the most challenging chapters in a person’s life. For many reasons clients such as business executives, celebrities or high net worth individuals want to keep their legal divorce proceedings private and maintain as much control over the process as possible. With mutual consent, a private judge or arbitrator can be used to settle disputes both big and small between parties in a Colorado divorce. Here are some pointers to consider when determining if a private judge or arbitrator is right for your divorce.

• Private Judge. There is a little known process that allows divorcing parties to pick their judge under Colorado Revise Statutes 13-3-111 and Rule 122. The parties request the Chief Justice of the Colorado Supreme Court appoint a retired judge for their divorce. This usually takes place at the beginning of the case and is signed off by the Chief Justice in a couple days. Once appointed, the private judge has the same authority as a district court judge and any decisions can be appealed. Many people select a former judge from the Judicial Arbiter Group (JAG) or JAMS.

• Arbitration. An arbitrator is a neutral third party who does not need to be a retired judge. Both parties need to agree on the arbitrator. An arbitrator can do just about everything that a private judge can do —parenting time, decision-making, child support, maintenance/alimony, and equitable distribution. The arbitrator’s decision is binding on the parties and can only be vacated or corrected pursuant to the Colorado Uniform Arbitration Act. In short, a party can request the state court vacate or modify the arbitrator’s decision, but will be responsible for the fees and costs of the other party’s attorney’s fees as well as the arbitrator’s fees if the original decision by the arbitrator is upheld.

• No Courtroom. The hearings for both a private judge and arbitration are held outside the courthouse at a place of the parties’ own choosing. Usually, this is in the conference room of one of the lawyers’ offices. Privacy is ensured; there is no audience of onlookers, and the atmosphere is comfortable. For arbitration, parties can agree to less formality in the rules of procedure and evidence. For example, parties in a Collaborative Divorce may agree they will not do depositions or cross-examine each other if they arbitrate disputes that cannot be resolved in the Collaborative Divorce process.

• You Pick the Decision-Maker. Colorado divorces are decided by judges; there are not jury trials for divorces. Instead of having the court system pick the judge for you, the parties and their lawyers can actually choose who will decide their case. We know all of the judges in Pitkin, Garfield, Eagle and Summit County, but parties may prefer to pick a former judge or specialist who is paid to focus on your case. Parties can use arbitration for decisions in disputes that involve just a part of a case, such as decisions in a joint custody dispute or valuation of items of personal property. As a result, most parties will select an arbitrator with specialized knowledge for the unique aspect they are deciding. For example, a CPA can be used for a dispute over the value of a business, trust interest or a party’s income. A child-psychologist can be used in a dispute over custody.

• Efficiency. Efficiency means saving time and money—and making smart use of the money and time you have. With a private judge or arbitrator, you get to choose the date and the time when your dispute will be heard. District Court Judges have more than just your case to manage; they have hundreds of cases they are responsible for, and the docket may not allow a hearing for many months. Although private judges and arbitrators aren’t cheap — they usually charge $300-600 per hour — there are often cost savings because your divorce is resolved quicker and with less fanfare than the regular court system. The cost of the private judge or arbitrator is usually split 50-50 between the parties.

• Preparation. If your case involves complex financials or children, you need time to present your case to the decision-maker. Extensive cross-examination may be necessary to show the other party is lying or an expert opinion is flawed. The regular court system may not allow you sufficient time to present all of the evidence for a well-reasoned, thoughtful decision. You may be forced to only scratch the surface of your child’s special needs or the primary market for your business. We are fortunate to have good judges in the mountains, but the reality is that they are forced to make decisions regarding complex property disputes or children in a limited amount of time because they have 20 other pending opinions to write. A private judge or arbitrator will have more time to give your case the attention it deserves.

• Flexibility. There’s much more flexibility when the case is handled by a private judge or arbitrator instead of tried in court. You don’t have to stop at 5 p.m. You can work through lunch if you want. In fact, with the agreement of the parties and the private judge/arbitrator, the case can be heard in the evenings so that the parties don’t have to take off time from work, or even on a Saturday. A private judge or arbitrator can also take the case in stages if it’s one with several issues, and set up separate hearings on different days. This gives you time to prepare separately for each one. In a custody case, you could deal with school issues on Monday, the psychologist’s testimony on Wednesday, mom’s issues on Friday, and dad’s issues the following Tuesday. With a dispute over property, you can separately hear the issues of valuation, classification, and distribution at different times, or you can present evidence on separate dates as to the home, the spouse’s business, the pension, and the personal property.

Kalamaya | Goscha is a Colorado law firm founded by Ryan Kalamaya and Amy Goscha. Our award-winning trial team specializes in divorces whether they be in the regular court system, arbitration or a private judge. Kalamaya | Goscha has law offices in Edwards, Aspen, and Glenwood Springs. To speak to one of our award-winning attorneys, call (970) 315-2365.