People who spend a lot of time worrying about whether or not something is “fair” tend to have serious problems while getting divorced. Deciding what’s fair and what isn’t can be a tough call on the playground, in business transactions, and in many other aspects of daily life. But nowhere is it more difficult than when breaking up a marriage.
If you are going to get divorced, keep this important fact straight:
Most decisions in divorces are not based on what you, your soon-to-be ex-spouse, or a judge thinks would be fair. And in divorce court, arguing about whether something is fair is usually a waste of time. Divorce court decisions are made by applying laws and past case decisions to facts that are presented at your trial.
Despite these realities, human good sometimes triumphs over the odds. As quiet as it is kept, there is a sizable slice of the people going through divorce court who genuinely want to be fair to the spouse from whom they are getting divorced.
I have been in many settlement conferences when a husband says something like: “I want Betty to have enough money to be able to go to school part-time and I just don’t think what she is asking for is enough. Let’s make it $650 a month.” Or a wife says: “You know, Frank, the children are going to want to see you on their birthday, so let’s work out a plan that gives you some time with them on that day.” When the other spouse smiles, looks across the table and says “Thanks,” it’s a good indication that fairness is happening.
Of course, everyone involved feels best when the judge’s decision accomplishes something that seems fair. For example, if applying the law to a particular situation results in financial security for a parent who has struggled to hold the family together without moral or financial help from the other parent, the judge feels pleased making the necessary orders. And the family members will surely benefit from this legally imposed plan. But if the laws and court decisions of the state dictate a victory for a spendthrift philanderer, a judge has no choice but to follow the law and make a decision that most people would feel was unfair.
When you are agreeing on issues at the kitchen table, meeting in mediation, or taking advantage of collaborative law, agreements you and your spouse make on your own based on fairness are just fine.
Judges will normally accept any settlement you and your spouse agree upon. But if you are not represented by a lawyer, a judge might feel that what you have agreed to is so far from what the law would provide that he or she will want to talk to you personally and be sure you understand your options. And the law in most states will also limit you from agreeing to provisions that would deprive your children of their legal rights.
But if you don’t settle your case out of court, remember this: What a divorce court will do with your case will often not seem fair.