Equity vs. Fairness in Family Law

So often as an attorney who primarily practices in the area of divorce and family law, I hear people say, “But that’s not fair.” It is an interesting thing because the goal of a divorce settlement is for it to be equitable, but is equitable always fair? I hear this so much, I often wonder why is it that most people don’t feel that the result of a divorce is actually fair.

When I was an undergraduate I majored in ethics. I remember learning about all of the different ethical theories in an introductory course. Repeatedly, the railroad train dilemma is brought up as a way to explain the basic theories. The idea that if a train is coming toward a group of people and you have the power to divert it, do you do it? The issue usually is that you will kill a lesser amount of people if you divert it, but the train is still killing people. Many ethical theories suggest you have an obligation to divert the train. However, obviously the people you hit when you divert the train wouldn’t consider this a fair result and some theories suggest actively killing anyone would be unethical, even if you were saving some lives. This is obviously an extreme example, but that is why it is used to show the vast differences in people’s viewpoints on fairness.

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I also often think back to my childhood when I hear these divorcees saying that they don’t think the result is fair and I can hear my mother’s voice saying to me “Life isn’t fair.” I wonder did their mothers not tell them that life isn’t fair?  And perhaps that this is why I am not offended by our legal system in that I have never really expected it to be fair.

It is meant to be equitable and create the closest thing to fairness it can, but that is never going to make everyone happy because we all have our own definition of what is fair.

Family law courts were established in the United States in 1910. They do not have their own juries, but rather are presided over by a single judge and were intended to be Courts of Equity as opposed to Law. Generally, family law courts operate under a looser interpretation of the rules of procedure than regular civil or criminal courts do. In some ways this can encourage fairness, but in other ways parties going through a divorce feel it creates unfairness and can often lead to a slower process.

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For example, in civil court when a party fails to answer, the court can grant a default judgment. In handling divorces, where a party fails to answer a divorce complaint within the 28 day requirement, it is often forgiven and they are given great extensions and leeway especially when they are pro se. I have seen this create frustration for the party on the opposite side time and time again.

As an attorney handling divorces, I often encourage people to come to their own resolutions because what a judge or magistrate may think is equitable is not what either party may believe to be equitable. In regards to money matters in divorces, it is usually easier to demonstrate from a number standpoint what the court thinks is equitable, even if the person you are representing does not necessarily agree with the logic. I found that in relation to children, it is much more difficult for people to understand the court’s view on equity and the best interests of children. This has become especially challenging in the time of COVID, when people have vastly different views on what is safe or not, especially when it comes to their children and visitation.

When it comes to current visitation orders that are already in place, they must be followed whether a parent thinks it is fair or not. Some parents believe their children should be seeing people outside of their immediate family and others believe they shouldn’t be seeing anyone at all, nor leaving the house. I have seen many people modify visitation orders due to COVID, which is allowed, but consistently parents in juvenile court and parents who have gone through divorces have to continue to follow the visitation orders.

This is increasingly important to instill in clients in that there are parents who will use COVID as a reason to deny visitation to the other parent, even when it is not warranted in any logical way.

It is important to make it entirely clear to clients that they must continue to follow court orders, regardless of what they believe to be fair or right in this uncertain time.  We as attorneys also must make it clear to them that it is not their idea of what is fair that the court is deciding, but rather the court’s understanding of fairness.