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The F- Word

He SWEARS he didn't cheat! They were all just "friends" that he spent piles of money on around major holidays. . .uh-huh.

There is a 4 letter F word that I cringe every time I hear it in the context of family law.  Most of my clients have told me this outright at one point or another.  The F word is (and I cringe to write it):  FAIR.  Because there is no such thing as “fair” in a family law case.

Because what do you say to the woman who has been married 23 years, who finds out right before Valentine’s Day that her husband has been cheating on her for at least a year, has been downloading porn onto the family accessible computer, and masturbated in their bedroom in the presence of her 11 year old son (hubby Thought the son was asleep!  Doh!)?  She should get buckets of alimony.  The husband should have to do counseling for his pornography problem.  Since she’s still taking care of their 3 children, she should get more household goods than the husband–after all, there are 4 of them and only 1 of him.  That’s only fair, right?

Right.

Unfortunately, family law is not fair.  It’s never going to be fair. The law is not about Fair.  The law is entirely neutral, and when it concerns itself at all with the fairness of a situation, it goes with Equity (and it’s equity as to the two getting divorced, not the rest of the family/children left at home with the custodial parent)–NOT fair.

I wonder if Blind Justice DOES cry sometimes at the unfairness of it all?

While Utah does still have some statutes on the books that would indicate that fault still matters in divorce cases [see grounds for divorce, U.C.A. 30-3-1(3), and the factors in determining alimony, U.C.A. 30-3-5(8)(b)], by and large, the court does not care WHY a couple is getting divorced.  Utah has become a no-fault state through the disposition of the court.  As I had mentioned in a previous post about alimony, the court actually came out and said that statutory allowance not withstanding, a court cannot consider fault in making an alimony award.  In a practical sense, to get adultery actually included in your final divorce decree as the grounds for your

divorce, you would have had to have a private investigator follow your spouse around for weeks, if not months, have actual evidence that is admissible in court, and the case would have to go to trial.  Very few people have the money (or the requisite vindictiveness) to take it that far.  And honestly, I don’t think anyone SHOULD take it that far.

I have a client who came to a settlement agreement through mediation last Tuesday.  She was the one who had the parade of horribles befall her that I mentioned in the first paragraph of this post.  When she first came into my office, 2 days after Valentine’s Day, she wrote on her client intake that if all went as she wanted it to, her husband would be emotionally destroyed and financially destitute.  She was pretty angry, to say the least.  At that time I counseled her that she had every right to be angry; that this was exactly the right time to feel angry and hurt and vindictive.  BUT, I also told her that at some point she was going to have to be magnanimous and merciful–not that day,but at some point down the road–and that it was not going to be fair in the end.  I reminded her of that again a few months later, after the filing of another document by her husband.  She was upset–livid, actually, about apparent omissions from his sworn-to, court filed financial affidavit.  She brought up “financial destitution” again.  I told her that her husband had a good lawyer.  The only way that financial destitution would happen would be if she dragged the court case out for years, sucking the money out of her husband in his own legal fees.  But that would hurt her as well.  I told her again what I had told her initially: in the end, it was not going to be Fair.  It never could.  Her husband had ripped out her heart and destroyed her life as she’d known it for 23 years.  There could never be enough compensation through the court to make any of it “fair.”

She didn’t get everything she wanted in mediation–it wasn’t Fair.  BUT, she got what was most important to her, and the things she had to give up can be replaced.  She is a reasonable, intelligent, confident, capable woman.  She will be ok.  It’s going to take some time for her and her family to recover from this whole ugly thing, but that’s to be expected.  What is not expected, and should NOT be expected, is a Fair resolution to a divorce action.  And realistic expectations can make the whole nasty horrible process considerably more bearable.

Probably the only way to make her feel like she's gotten justice in her divorce case. . .

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