Fair or Equitable?

When I was a teenager, I would bemoan the fact that something or another wasn’t “fair.”  The teacher wasn’t fair.  My friends weren’t being fair, the rules for college admission weren’t fair. Whatever it was, it wasn’t “fair.”  My mother, after listening to my litany, responded (more than once), “Who told you life was fair?”

That, in a nutshell, summarized my mother’s matter-of-fact worldview.  Her calm and cool delivery of the line let me know that if I didn’t like a decision, grade, or other “unfairness,” I should be prepared to fight against it as best I could, or I should accept it and move on.  Either way, it was up to me.  I don’t remember her ever trying to convince me that something was fair.  She expected me to learn it for myself, although she would sometimes play Devil’s Advocate.  I don’t think the idea of equity ever came up, and if it did, I’m sure I believed they were the same thing.

In family court, there is an inherent difference between “fair” and “equitable.” Think of fairness as equality between the parties.  It’s what happens when I go buy ice cream for the family and everyone gets exactly one cup of ice cream.  Doesn’t matter how large or small the person, and it doesn’t matter who did their homework or their chores around the house.  I bought ice cream for the family, and all members get an equal, fair share.

Equity, on the other hand, takes into account what contributions members of the family have made before doling out anything to the various members.  Equity seeks justice among the parties. If I buy ice cream for the family, but someone was completely lazy all week and didn’t do any chores and other members had to do their work, why should the lazy person get the same as the ones who worked harder? Shouldn’t the harder workers get a little extra as a reward?  Or maybe instead, I’ll put some whipped cream on their ice cream, but none on the lazybones’ ice cream!

See, in equity, we can reward the harder worker, or the one who contributes more, with a little extra in recognition of the extra contribution.  But sometimes, to do so, we may have to take a little “ice cream” from the one who didn’t contribute as much.  If the family has a lot of extras (like whipped cream) it doesn’t hurt as much.  But in a family with fewer resources, the person who gets less because they contributed less will inevitably feel the pinch when the other party is award more in acknowledgement of their greater contributions.

South Carolina Family Courts are courts of equity.  Marital property will be equitably divided.  If you are seeking a divorce, be sure to find a family law attorney who is skilled in assisting clients in preparing valuations and other tools for use in equitable division of their assets.

Author: Cathi Chambley

Charleston School of Law, Juris Doctor, December, 2009. University of Georgia, Master of Science, December, 1984. University of Georgia, 1982. South Carolina Bar Association, License # 79932 admitted May 11, 2010 I practice family law and personal injury law in South Carolina. Although my office sits just inside Augusta, Georgia, on 4th Street in Old Town, I am happy to help you with your South Carolina family and personal injury legal cases.