The F-word in Divorce: What is Fair?
- What does fair mean in divorce?
- How litigation reduces fairness in divorce
- Fairness if you need a divorce lawyer
- How mediation can help
- Why nothing is totally fair in divorce
- Tips for getting the fairest divorce outcome
- Getting help
“Only I didn't say ‘fudge.’ I said the word. The big one, the queen mother of dirty words, the ‘F, dash, dash, dash’ word.”
In divorce, and particularly mediation, that word is “F-A-I-R.”
What does “fair” mean in divorce?
“Fair” seems innocent enough. It implies an outcome in an acceptable range. The Merriam-Webster Dictionary defines it as, “Marked by impartiality and honesty; free from self-interest, prejudice, or favoritism.”
How can that be a bad word? Because fairness requires context and is distilled from subjective perspective and interpretation.
Is fairness always subjective?
If you are focused on yourself, and your spouse is focused on themself, “fair” will not mean the same thing to both of you. If you were the stay-at-home parent, you might feel that “fair” means a spousal support payment that considers all the sacrifices you made over 15 years to raise children and make the meals and do the laundry – all without thanks from anyone.
If you were the spouse who started a business and spent 80 hours a week toiling and sacrificing to make it profitable so your family had security and a comfortable standard of living with nice things, “fair” may mean a much lower spousal support payment.
How litigation reduces fairness in divorce
There are many reasons to avoid litigation if you can. The main ones are:
- Additional costs
- Takes more time
- Public nature of trials and records
- The damage it can do to family relationships
- Again, the COST
But sometimes litigation is necessary, as is the case when there is no transparency, cooperation, or a willingness to negotiate in good faith. It’s also necessary if there are issues involved like abuse (either financial, emotional, or physical), coercive control, or addiction.
Fairness if your divorce requires an attorney
If you choose to or are pulled into litigation, the judge will ultimately decide for you and your family. How is the property going to be divided? Must you sell the house? What support payments will be necessary, and for how long? How frequently will you see your children (and perhaps under what conditions)?
If you and your spouse cannot come to an agreement on these matters and more out of court, the judge is responsible for determining your outcome based on the parameters given to them by your state laws. There are some decisions the judge cannot make for you, including college cost sharing, but at the end of the day, decisions will be made for you within the context of the law.
The judge will make their decisions impartially, without favoritism or discrimination. And here’s where things often turn out “unfair.” You might not be happy about the outcome. Neither of you may like the orders, but they were made within defined parameters. The outcome, as defined by the state laws you implicitly required the judge to use to make decisions on your family’s behalf, is fair.
How mediation can help keep your divorce outcome fair
Mediation is an entirely different process. You and your spouse, with the facilitative assistance of a mediator and potentially additional divorce professionals such as an attorney, divorce coach, child specialist, financial advisor (like me, a Certified Divorce Financial Analyst), forensic accountant, realtor, lender, business valuator, or even a pet custody evaluator. Together, this team will negotiate in an effort to find solutions that are agreeable to both of you.
Why nothing is totally “fair” in divorce
As you negotiate with your spouse, I would caution you against using the word “fair” to describe why they should agree with a solution you are proposing.
Why? Doubt and the perception of conflict of interest are inherent between spouses during divorce. Even the most altruistic spouse should expect to have their motivations questioned while negotiating. It just happens.
Citing “fairness” as an objective characteristic will almost certainly be met with pushback and can cause resentment. Saying to your spouse they should accept something because you say it is “fair” may be perceived as manipulation and erode the confidence your spouse has that they can make decisions with you.
Tips for getting the fairest divorce outcome
So how do you get a fair outcome? Don’t use the F-word. Instead, try these dos and don’ts:
- Look at the pros and cons of each proposal from each side and try to identify them together.
- Don’t put pressure on your spouse to make a snap decision.
- Don’t give your spouse the impression that there are non-negotiable ultimatums.
- Keep an open mind and recognize that you are both afraid of how this process will affect you.
- Be respectful toward each other and try to remain focused on the decisions, not the emotions and triggers that have brought you to this space.
- Consider hiring one or more divorce professionals to help you.
Getting help with achieving a fairer divorce outcome
As a Certified Divorce Financial Analyst professional, my job is to help spouses make informed decisions about the financial aspects of divorce. Broadly, these include the division of community or marital property, income sharing (more commonly referred to as spousal support or alimony and child support), and some of the less obvious financial considerations, such as how to share the ongoing expenses of the kids, a plan for funding college, and who will maintain healthcare insurance for the kids.
I go about this by using the couple’s income, expenses, assets, and debts to quantify different scenarios. We look at how equal or equitable a division of property is on both a pre- and post-tax basis. I prepare reports to illustrate what each spouse’s net income is after deducting expenses and taxes.
Together, we can explore the affordability of the home, net worth projections, and quantify what the net sales proceeds of real property will be after selling costs and taxes. We’ll go through the state’s child support calculations and discuss the inputs, and we work to find an agreeable plan for spousal support.
Work with John by booking an appointment with him here.
Through mediation, there can be a lot of creative solutions that are not allowed by the parameters of the law for judges in the litigation process.
For example, what if you both want one spouse to stay in the family home for a few years for the stability of the kids but the moving spouse can’t afford to “buy them out” or would not be able to afford the new mortgage payment after a refinance? Maybe both of you can stay on the title and mortgage and agree to split the sale proceeds in the future once the kids are off to college.
In another scenario, perhaps you do not have the resources to equalize community or marital (shared) property without uncomfortably reducing your cash reserves. Then we might explore if a lump sum of spousal support can be used as an offset against what you owe.
There are many professionals available to you at Hello Divorce. Our role is to facilitate conversation between the two of you, help you set your intentions, understand and assist with the process and paperwork, and allow you to make informed decisions and agreements. And I promise we will not use the F-word.
Learn more about our plans and services, or book an appointment with me here.
