Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, June 14, 2007

Case Law Development: Prerequisites for Order to Arbitrate of Divorce Actions

A three-judge panel of the Michigan Court of Appeals reverses a divorce court's grant of default judgment against Husband based on his refusal to participate in arbitration. An important issue in the case was when the parties separated (the case provides great facts for a hypothetical on this issue).  The litigation at trial was complicated by being heard by three different judges, none of whom had provided the necessary disclosures regarding arbitration required by Michigan's domestic relations arbitration statute.   The majority held that the trial court erred in granting default judgment in light of is failure to comply with the requirements of the statute regarding written agreements to arbitrate and judicial disclosures regarding the process. 

The dissent by Judge Murray agreed that the trial court had not complied with the statutory requirements but would have upheld the default judgment as a sanction for the Husband's failure to comply with a court order. The concurring opinion by Judge O'Connell agrees that, while litigants must obey court orders, court must equally follow statutory dictates.  The exchange between the two judges in their opinions provides a lovely example of policy argumentation for our students.  For example, Judge O'Connell argues:

plaintiff was ordered to forego recourse to our primary institution of justice, surrender his rights, and submit the substance of his legal dispute to the discretion of an unknown, unelected, unappointed, and largely unaccountable third party. Although our courts have always respected a party's consent or contractual freedom to take a more streamlined approach to dispute resolution, they have never shirked their constitutional duty by requiring litigation in an alternative, unofficial forum. ... Domestic relations necessarily involve personal, rather than pecuniary, issues, so our legal system has been especially slow to sanction extrajudicial resolution of any of these matters, even when founded on the parties' mutual assent.

Johnson v. Johnson, 2007 Mich. App. LEXIS 1480 (June 7, 2007)

Read the opinions  (majority) (concurrence) (dissent) (last visited June 14, 2007 bgf)

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There needs to be some effort to reconcile what is currently know about high-conflict divorce, personality disorder, and the use of the legal system as a weapon by litigious persons who cannot meet a reasonable person standard assumed by legal theorists. The law has developed over many years an implicit theory of personality. Once this theory (these theories) are made explicit, they need to be viewed in the light of current knowledge about personality, the brain, and the social-ecology of the person in the legal environment. If and when this is done, it may be possible to frame an argument for diminished rights of an individual given history and his/her impact on spouse and children.

Posted by: Arthur Wiener | Jun 23, 2007 9:08:04 AM

Thanks for this post. I wonder how many of these divorce mediation agencies in Utah are certified for this specific type of law. Thanks again.

Posted by: Richard Wright | Jun 3, 2013 8:31:11 AM

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