I don't think divorce is allowed by arbitration, but my
understanding is that arbitration of the property division is allowed.
Some states -- perhaps most -- bar arbitration of child custody, child
support, and visitation questions, on the theory that those involve the
interests of the child and must be decided by a court under the best
interests test; but as best I can tell other states do allow at least
some such arbitration (though with some degree of review in case to make
sure the decision isn't against the child's best interests).
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach
Sent: Friday, November 21, 2008 6:54 AM
To: Law & Religion issues for Law Academics
Subject: RE: Can religious and secular courts exist in the same
nation?
One family law question: is divorce allowed by arbitration
anywhere in the United States? The world?
It seems to me that the other difference between entering into a
marriage and getting a divorce is that divorce might involve the
interests of third parties-children, third-party contractors, etc. I am
quite ignorant of family law, prenuptial agreements, etc., but it seems
like spouses could not enter into enforceable marriage contracts,
subject to arbitration, regarding how, for example, child custody would
be treated in the event of a divorce. But perhaps these sorts of
agreements exist?
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, November 21, 2008 7:55 AM
To: Law & Religion issues for Law Academics
Subject: RE: Can religious and secular courts exist in the same
nation?
But doesn't the "one side's choice" characterization assume
the conclusion that people's long-term contracts to engage in religious
arbitration shouldn't count as a choice? As Cohen v. Cowles Media makes
clear, one can waive free speech rights, and I take it this can also be
done some time in advance. (Various kinds of nondisclosure agreements
do this all the time.) Nor does a political conversion excuse one from
such a waiver, I take it. Ordinary arbitration agreements generally
waive jury trial rights, years in advance of the time when the jury
trial is to take place. Why wouldn't people be able to waive their
rights not to have to go to religious court, when they expressly
contractually agree to that? They would still retain the right to
change their faith -- just not to repudiate the promises they made
before that change.
Eugene
Doug Laycock writes:
I have gradually come round to the view that state
recognition of marriages performed by religious authority is problematic
too, but not for the same reasons as divorce. The marriage is
consensual, and the choice of who is to perform the marriage is
consensual; neither spouse is being coerced by government power. But a
contested divorce is not consensual, and if one spouse wants to be in
religious court and the other wants to be in civil court, the choice of
where to get it is not consensual. The question is whether the state
can use its coercive power to enforce one side's choice.
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