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.

Recreation drug use as a ground for divorce

Once in while, I’m asked whether it’s possible to get a divorce based on the occasional use of drugs.  South Carolina law seems very clear on this subject. S.C. Code Ann. Section 20-3-10 SECTION 20-3-10.

Grounds for divorce.
No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit: . . .
(4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; . . .

 Oh, except for the little problem of “habitual drunkenness.” Does that mean drinking every day or only on the weekends? How much – a six-pack after work or just one drink every day?  And how does “drunkenness” related to getting high on drugs?

The courts have construed habitual drunkenness to be “the fixed habit of frequently getting drunk; but it does not necessarily imply continual drunkenness.” Rooney v. Rooney, 242 S.C. 503 (1963). In other words, if your spouse drinks to the point of drunkenness often but is not constantly drunk, you can get a divorce on this ground if you have witnesses or other supporting evidence. Testimony from your friends and neighbors, fellow employees or family members about seeing your spouse frequently drunk would support your contention, as would expensive bar tabs or liquor store bills, for example.  Alcoholism as reported in medical records is a ground for divorce. Yates v. Yates, 2003 UP 00635 (Ct. App. 2003).  In addition, the habit of drunkenness must exist at or near the time of filing for the divorce. Simonds v. Simonds, 229 S.C. 376 (1956), Lee v. Lee, 282 S.C. 76 (1984).  You can’t divorce a recovering alcoholic who hasn’t had a drink in years for habitual drunkenness, but you can divorce a drunk whose last binge was three weeks prior to filing based upon that habitual drunkenness.

But what about DRUGS?  Turns out, it does not matter what you get “drunk” on.  Just change the word “drunk” to read “intoxicated” or “high” and you get the same result for drug use.  If you can establish, by a preponderance of the evidence, that your spouse is habitually “high” on a drug, that is sufficient for the court to grant a divorce on this ground.  Examples of evidence are successive failed drug tests, testimony of witnesses, and medical records showing treatment for drug addiction.

I do want to add a caveat to all this – courts don’t like it when one drug user points the finger of blame at another!  If both parties have been using drugs (or getting drunk) together, it creates another set of issues for the court to determine.  More about that another time.

Recreational drug use, that is the very occasional use of drugs such as marijuana, will not meet the standard for habitual drug use (neither will occasional drinking.)  Of course, as you might guess, the dispute between the parties will be centered around the difference between occasional and habitual use.  Some courts have found that any use that has lead to the degradation of the marital relationship is habitual use, at least as far at that particular marriage is concerned.  If you are concerned about drug use or alcoholism and its effects on your marriage or children, consult an experienced attorney for advice.

What the heck is a “tort”?

A “tort” is a wrongful act leading to legal liability.  Isn’t that helpful? Don’t you feel scholarly?

Hmmm. Don’t feel bad, I didn’t feel very knowledgeable when I first heard the word “tort” in law school.  The definition didn’t help, either.  Maybe this will.  Generally, a tort is a civil wrong inflicted upon one person by another such that the actor (the inflictor) is liable for any harm he caused to the first person.  Did that help?

Yes, now I am laughing. 🙂  But, really, I promise I will explain.  Starting now.

  • A Civil wrong. A civil wrong isn’t the same as a crime.  Some things can be BOTH criminally wrong and civilly wrong (say, negligent homicide for example.) But, some torts are not crimes.  For example, if I am the cause of a car accident in the rain in which you were injured – yes, I should have slowed down and been more careful in the rain, but if I was under the speed limit, and my wipers were working and my lights were on, and I wasn’t drinking or texting, then I likely won’t get a ticket for the collision, but I still might have been negligent (a civil wrong).
  • Inflicted. Who did it? Why did they do it? Did they mean to do it? Did they do it negligently, recklessly, willfully, wantonly? All these things matter.  If you have the wrong actor, then that person cannot be held liable.  If I am not the one that pushed you onto the train tracks, I cannot be liable for your injuries. Maybe.  Perhaps I pushed the person next to you and they fell onto you and you fell onto the tracks. Then I will be liable.  But if I pushed a guy into the river, and he got out and was angry and drove to the train station, and in a fit of pique over being wet pushed you onto the train tracks, then I am not liable for your injuries, he is liable for your injuries.  I’m responsible if he got hurt falling into the river, but not liable to you.  This is called proximate causeA person is only liable for those injuries he proximately causes.  There can be more than one proximate cause. (More about that some other time!)
  • This concept is also intricately tied to another called “Duty.” I’ll talk about that one on another day, as well.  In the example above, if I pushed the guy into the river, I don’t have any duty to make sure he doesn’t go push you onto the train tracks.  If I can’t foresee that he might do that, and I don’t know who you and don’t instruct or plan for that to happen, I have no duty and therefore no liability in your injuries, even if you die.
  • Harm. The harm that the actor inflicts is called, collectively, the damages.  Damages range from small things like trespass to person (in other words, you touched me without my permission) to death, and from nominal costs (where a jury awards a few dollars to show that there was a loss) to medical bills and lost wage claims in the millions of dollars.  Obviously, it depends upon the type of harm, or injury that was inflicted by the actor.  Damages are proven by evidence such as medical bills and records, direct testimony, payroll records, demonstrative evidence, photographs, videos, and virtually any other form of admissible evidence.

So, what is a tort?  A tort is an civil wrong that causes injury, large or small, to a person, inflicted by another person who becomes liable to the first person because his action is the proximate cause of the harmful injury.