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Arbitration is increasing in popularity in New Jersey divorce cases due to its ability to significantly reduce the cost and length of the legal process. New rules that were adopted in 2015 ensure that New Jersey courts are able to review and enforce arbitration awards in divorce cases.


The New Jersey Supreme Court enacted a new rule, Court Rule 5:1-5 which provides rules for the arbitration of divorce matters. Adopted on September 1, 2015, Rule 5:1-5 applies to all agreements to arbitrate and consent orders to arbitrate any family law matter, with the following exceptions:

(a) the final judgment of annulment or dissolution of relationship;

(b) actions involving the Division of Child Protection and Permanency;

(c) domestic violence actions;

(d) juvenile delinquency actions;

(e) family crisis actions; and

(f) adoption actions.


Rule 5:1-5 essentially codifies the 2009 New Jersey Supreme Court case of Fawzy v. Fawzy.

In Fawzy, the parties agreed to use binding arbitration to resolve all of the matters of their divorce case. During the arbitration process, the husband wanted to stop the arbitrator from deciding child custody, arguing that to do so would deprive the New Jersey courts parens patriae doctrine, which requires the court to act in the best interest of the child. A trial court disagreed, then the appellate court reversed, and the case ultimately made its way to the New Jersey Supreme Court.

New Jersey Supreme Court Justice Virginia Long held that “within the constitutionally protected sphere of parental autonomy is the right of parents to choose the forum in which their disputes over child custody and rearing will be resolved, including arbitration.” Fawzy. The court will affirm the arbitration award unless it would result in hard to the child. Additionally, in order for the court to uphold the arbitration award, Justice Long held that the proceeding must be adequately recorded in order for the courts to be able to evaluate any potential challenge to the award. To that end, a record of the arbitration proceeding must be kept, the testimony recorded, and the arbitrator must issue its findings of fact and conclusions of law that led to the award of custody and parenting time.


New Court Rule 5:3-8 deals with the Court’s review and enforcement of arbitration awards. Rule 5-3:8(a) addresses most arbitration awards, except those discussed below (custody/parenting time and child support awards), and allows either party to the arbitration to make a motion to the court to enforce the arbitration award. The court is then required to confirm the award of the arbitrator unless the court finds that it must modify or vacate the award under the standards set by N.J.S.A. 2A-23B-23/24. Please note that the scope of juridical review for non-custody/parenting time and non-child support awards is limited under N.J.S.A. 2A-23B-23/24 to issues of fraud, corruption, misconduct, mathematical miscalculations, mistakes in the description of thing, person or property referred to in the award, imperfections in regard to form, procedural deficiencies, and whether the arbitrator exceeded his or her powers.

Rule 5-3:8(b) deals with child custody and parenting time decisions. The rule directs the court to confirm the award as in subsection (a) unless 1) a record of the evidence was not kept, 2) the award does not have written findings of fact and conclusions of law, 3) there was not a verbatim record of the proceeding, or 4) there is evidence that the award would cause harm to the child.

Regarding child support, Rule 5:3-8(c) directs the court to affirm the arbitration award as under subsection (a) unless there is evidence to show that enforcing the award would cause harm to the child.

If you have any questions about how these new court rules affect your arbitration, call the Law Offices of Peter Van Aulen a NJ divorce lawyer today at (201) 845-7400 for a free initial consultation.


Court Rule 5:1-5 Arbitration

Court Rule 5:3-8 Review and Enforcement of Arbitration Awards

N.J.S.A. 2A-23B-23/24

Fawzy v. Fawzy, 199 N.J. 456 (2009)



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