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Sunday, February 14, 2010

Courts - Kentucky Court of Appeals bans arbitration in divorce cases.

Indiana has a Family Law Arbitration Act, IC 34-57-5, passed in 2005.

Kentucky apparently does not have a similar, specific act. According to Diana L. Skaggs, a Louisville attorney and a fellow of the American Academy of Matrimonial Lawyers, quoted here in the Kentucky Law Reader:

The Kentucky Arbitration Act does not have a comprehensive list of all causes that may be arbitrated. It does have, however, a list of issues that may not be arbitrated and domestic relations disputes are not on that list. Thus, the legislature did not exclude domestic matters from arbitratable matters.
In the case of Campbell v. Campbell, published Feb. 5, 2010, a Kentucky Court of Appeals panel held that family law disputes are not arbitratable in Kentucky.

The Louisville Courier Journal published this column by Ms.Skaggs in its Feb. 12th issue. Some quotes:

Distressed that arbitration is not a viable alternative to spouses who cannot afford to pay an arbitrator and holding that the approval of the arbitration process by a family court constitutes an improper delegation of its constitutional responsibility, the Kentucky Court of Appeals recently barred arbitration in divorce cases.

Until then, family law arbitration had been available in Kentucky as a voluntary, alternative-resolution process for divorcing spouses wishing to employ a private individual as their neutral decision-maker to determine how their assets should be valued and divided. Spouses opt in to the arbitration process for many reasons. Some have a complex valuation matter best resolved by someone with the specialized expertise of a particular arbitrator; some want a quicker resolution process than the court system can provide; some desire a less formal process than the traditional adjudicatory one; some hope to reduce the trauma and anxiety of marital litigation; and some hope to resolve sensitive matters in a private forum.

Controversy should not accompany the availability of arbitration, a process that allows husbands and wives to resolve disputes which will have significant, long-term and possibly deleterious effects on their lives by choosing the person to resolve those disputes.

In the most worrisome aspect of the decision, the court concluded that arbitration creates a class system where affluent individuals can pay for a private judge while persons of lesser means must have their case heard by elected judges, in perhaps a less speedy manner.

Ms. Skaggs' column is also posted here, in her law blog, Kentucky Divorce Law.

Posted by Marcia Oddi on February 14, 2010 02:34 PM
Posted to Courts in general