The Concept of Fairness in a Massachusetts Divorce

By Rikk Larsen, Agreement Resources, LLC

As couples work their way through their divorce process they often struggle with the issue of what is “fair.” And it is not just the idea of finding one concept of “fair” that can be magically thrown over the proceedings like a comfortable blanket; each issue, from property settlements to asset divisions to a broad range of parenting plan elements, comes with its own history of what goes into a fairness definition. Add to this the tension of an already strained relationship and the different cultural and family backgrounds that can come into play and it’s no wonder that a mediator is often required to help sort through the divorce decision process.

As we know, part of the power of the mediation process comes from the notion that divorcing couples who choose mediation have preselected themselves as being ready in theory to thoughtfully consider each other’s concept of what is fair. This does not preclude conflict, but the underlying assumption is that the parties accept that the mediation process is about listening and compromising to come to an acceptable agreement.

Here are three important approaches to “fairness” you might consider in a Massachusetts divorce:

First, avoid becoming too positional in your thinking. Obviously, each party is going to create a list of topics and issues and take positions on what he or she thinks is fair in each case. But try to avoid a repetitive, entrenched rehashing of your initial comfortable fairness assumptions. This does not mean you shouldn’t have strong feelings, but open yourself up to other views by reading, talking to family and friends (even the ones who may not agree with you all the time), and consulting attorneys and other relevant professionals. Recognize that there may be several equally legitimate concepts of what “fair” is for a given issue.

Second, expect the unexpected emotional time bomb. No matter how well you plan and no matter how detailed your issues list happens to be, there will always be a surprise issue or two that neither party thought would be important before meeting. Whether it is who gets the flat screen TV or how many days each of you spends with the dog, something unexpected will matter to you more than you could have predicted ahead of time. Don’t let this inevitable fact derail your dialogue process.

Finally, remember there is a very powerful, silent third party in the room with you as you deliberate and struggle to come to a “fair” outcome. It is the Commonwealth of Massachusetts. No matter how amicable you are, you must remember that a judge ultimately will look at your separation agreement and decide if he or she thinks it is “fair.” This doesn’t mean an unnecessary intrusion into the details of your joint decision process. The days are long gone when judges felt it appropriate to muck around in the depths of your personal lives, but there are several strong principles that every court will uphold, starting with putting the interests of children first. Be sure to carefully review the new child support guidelines issued in 2009. And take the time to read the guidelines judges follow for other divorce issues. The vast majority of mediated divorces are approved quickly and couples spend only a few minutes in court in front of a judge if they have resolved all their issues beforehand. Don’t let a stranger, no matter how well intentioned, have power over you. Spend the time to conquer the fairness question.

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