MARCH 2025 | 13 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. either party may challenge the award under both the Oklahoma Uniform Arbitration Act and the Trial by Referee Statute. FAMILY ARBITRATIONS DIFFER FROM OTHER ARBITRATIONS BECAUSE THEY REQUIRE COURT APPROVAL FOR THE REFERRAL FOR ARBITRATION AND THE CONFIRMATION OF THE AWARD In civil arbitration, it is common for a party to participate in an arbitration and comply with an arbitral award voluntarily, keeping the process and award confidential and without the necessity of court intervention.18 This is impossible in family law because only the court has the authority to issue orders granting a divorce or legal separation,19 divide property20 and make custody decisions about children.21 The court in a family law matter must divide the property, whether real or personal, that has been jointly acquired during their marriage in a manner “as may appear just and reasonable.”22 The court may allow alimony to either spouse, out of the separate property of the other, in an amount “the court shall think reasonable.”23 The parties to a divorce case may negotiate a settlement of their case. If they reach an agreement, it must be presented to the court for consideration. However, such an agreement is not binding on the court.24 Within this framework, the parties may negotiate an arbitration agreement for their family law matter to be heard in full or in part by an arbitrator. However, the arbitrator’s award, like a settlement agreement, must be approved by the court. The court must find the award as to property and spousal support “fair, just, and reasonable.”25 The court must also find it has jurisdiction over the children and any child custody or child- related arbitral decisions to be in the child’s best interests.26 In this process, family law arbitral awards are subject to a mandatory judicial review, unlike other arbitral awards and much like family law settlement agreements. THE NATIONAL TREND TOWARD FAMILY LAW ARBITRATION AND THE UNIFORM FAMILY LAW ARBITRATION ACT (2016) In 2016, the Uniform Law Commission (ULC) enacted the Uniform Family Law Arbitration Act (UFLAA), creating a potential statutory scheme for states to enact.27 The ULC and the American Academy of Matrimonial Lawyers (AAML) enacted resolutions for its passage nationwide.28 According to the UFLAA, a “family law dispute” refers to a contested issue falling under the state’s family or domestic relations law. These disputes often involve conflicts over marital property, spousal support, child custody and child support. The act specifies that an arbitrator may not: Grant a divorce Terminate parental rights Grant an adoption or guardianship of a child or incapacitated person Determine the status of a child needing protection29 Family law disputes differ from traditional commercial disputes for the purposes of arbitration, and the UFLAA includes specific provisions not found in the Uniform Arbitration Act or the Revised Uniform Arbitration Act.30 These provisions are designed to protect vulnerable individuals, such as children and victims of domestic violence, during the arbitration process.31 For example, unless both parties waive the requirement, the UFLAA mandates that arbitrators receive training in identifying domestic violence and child abuse before handling a family law dispute. If an arbitrator detects abuse, they must pause the arbitration and refer the case to court.32 Similarly, if a party is under a protection order, that part of the dispute will be directed to court for resolution.33 The UFLAA mandates a thorough judicial review of arbitration awards related to child issues.34 While awards about property or spousal support undergo limited judicial review, child-related awards can be confirmed only by a court if they comply with applicable law and serve the best interests of the child.35 Additionally, states have the option to enact de novo review of child-related awards.36 Some states may prefer to exclude child-related disputes from arbitration, and the act offers an opt-out provision for this purpose.37 Once the court confirms an award, a party can seek a modification under state laws governing post-decree modifications. If both parties consent, these modification actions can be resolved through arbitration.38 In 2023, the state of Washington and the District of Columbia enacted the UFLAA, joining Arizona, Hawaii, Montana and North Dakota. The Uniform Law Commission website maintains a record of states that have adopted any uniform law.39 Family law arbitrations may be allowed in states where the UFLAA has not been enacted. A recent ABA survey
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