Pennsylvania recently adopted the Family Law Arbitration Act (FLAA), which became law on July 7, 2024. The FLAA allows decisions related to divorce, property division, alimony, child support and other matters to be made by a qualified third party “arbiter.”
The arbiter is selected by the parties, who are responsible for any and all fees charted for the arbiter’s services. In order to enter into FLAA arbitration, both parties must agree to arbitrate and also agree to the terms and rules of the arbitration. The parties must also agree upon what matters the arbiter will oversee – for example, a couple may choose to have the financial terms of the divorce arbitrated but not custody.
What may be arbitrated under the FLAA: Division of marital property and debts, alimony, spousal support, child support, and child custody.
What cannot be arbitrated under the FLAA: Some matters may not be decided by the arbiter. Adoptions, protection from abuse actions, guardianship, delinquency and granting the final divorce decree itself are all excluded matters. Moreover, all final decisions of the arbiter connected to custody, child support and some other matters are always modifiable later by the Court. For example, upon proper motion, the Court always has the authority to modify a custody order if it is in the best interests of the child.
About the arbiter: Just like a judge, the arbiter must disclose any relationships or connections that might affect their impartiality.
The parties can select any person to be an arbiter, but unless they expressly waive these requirements, the arbiter must be an attorney, a former attorney on inactive status, or a senior judge and must complete at least five hours of continuing education in domestic violence and child abuse.
Working with the arbiter: Prior to entering arbitration, the parties must agree upon an arbitration agreement that defines all of the terms, rules, and processes of the arbitration. The parties must then sign the agreement and pay the arbiter.
Unless the parties agree otherwise, the arbiter can set the rules for the arbitration. Those rules may include requiring the parties to provide documentation and information, holding a conference, holding a hearing, interviewing a child who is the subject of a custody dispute, appointing a private expert, administering an oath or affirmation, issuing a subpoena for the attendance of a witness or the production of documents, compelling discovery and issuing sanctions for failure to comply, prohibiting a party from disclosing information for good cause, appointing an attorney, guardian ad litem or other representative for the child at the parties’ expense, imposing a procedure to protect a party or child from the risk of harm, harassment, or intimidation, allocating fees and costs, or imposing sanctions for bad faith or misconduct.
The arbiter must stop the arbitration if they have a reasonable belief that a party or a child is the victim of domestic violence or if a PFA is entered or if a party cannot effectively participate due to domestic violence.
In general, all communication with the arbiter must be made with both parties or both counsels present or part of the communications.
