By: Alan Freed
I’ve been mediating divorces for the better part of four decades, and, although many aspects of the law and about how people perceive marriage and divorce have changed over that time, one thing has remained constant: Everybody firmly believes they are entitled to a “fair” outcome.
I have yet to have a single client cross the threshold of my office and demand an “unfair” resolution of their case. Similarly, I have never heard a mother or father who wants a parenting plan that is not in their child’s best interests.
As it happens, the laws governing dissolution of marriage (that’s the legal term for divorce in most states, including Missouri and Illinois) never discuss fairness. The Missouri statute governing the division of property requires a court to divide the property and debts “in such proportions as the court deems just after considering all relevant factors.” What is “just,” however, does not necessarily square with what either spouse believes is “fair.”
Most divorce cases are settled, and there is a statute describing a judge’s obligation in reviewing the settlement document, usually referred to as a “separation agreement.” That law ventures even further from any concept of “fairness.” It says the court has to determine whether the separation agreement is “not unconscionable.”
The online Free Dictionary says “unconscionable” describes “a contract or bargain which is so unfair to a party that no reasonable or informed person would agree to it.” That definition tells me that two people could come up with an agreement that is “conscionable,” even though neither one of them would call the agreement “fair.”
Similarly, a parent could come up with a parenting plan they believe is in the children’s “best interests,” even though the other parent might find that plan to be “unfair.”
So how should you think about resolving your divorce case?
- Recognize that what you believe is “fair” may be very different from how your spouse perceives the situation. It is also likely not the same as how a judge might see things.
- Coming up with a settlement will require you to look at the issues from the perspective of your spouse. You don’t have to agree with that perspective, but you do need to take it into account if you want to reach an agreement.
- Don’t expect a judge to see things your way simply because you believe you have a compelling story to tell. Experienced judges have heard every story, and they will not automatically latch on to your idea of fairness.
- Try to get comfortable with the idea that you won’t get everything you want in your settlement. Sometimes you have to give a little to get a little.