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.

Who pays for my divorce?

Usually it starts like this.  A potential divorce client comes in for a consultation and states right off, “I don’t have any money.”

Uh-oh. I have to tell you, frankly, that is a bad start.  Because even if you and your spouse can agree on every single thing right down to splitting the silverware, divorce is going to be expensive.

First, there are the court costs and the service of process fees.  These costs are the same whether you have an attorney or are a self-represented litigant (often referred to as pro se.)  In addition, if you and your spouse cannot reach a fair and equitable settlement, you may be ordered to participate in mediation.  Many counties, including Aiken County, are mandatory mediation counties.  If the contested issues involve child custody and visitation, the judge will appoint a Guardian ad litem to the case.  You will pay for the mediator and the Guardian ad litem‘s time.

In addition to these fixed costs, you may need to hire a private investigator , a business evaluator, psychologists, child custody evaluators, and other experts.

If your spouse says the magic words, “I want a divorce” don’t be tempted to go it alone to save money.  Do yourself the favor of getting legal advice before you decide to be self-represented or to “share” attorneys with your spouse*.

 *In South Carolina, an attorney in a divorce case cannot ethically represent both parties.  “Sharing” an attorney is unethical; typically, an attorney will represent only one of the litigants.  The other may waive his right to an attorney by signing documents stating that he or she has been advised that he has the right to retain his own counsel and has freely and voluntarily given up that right.

Divorces are expensive. But an attorney who practices family law can advise you where to spend money wisely, how to save money by negotiating wisely, and help you understand all the pitfalls and possibilities of the family court.

 

 

 

So you think you want a divorce?

First, stop and take a deep breath. Then take another. Because you will need it to get through the next parts.

Divorce in South Carolina isn’t really difficult, but it can be slow and tedious even in the best of circumstances. Let’s say you and your spouse have agreed, amicably, that you want to part ways. You don’t own any property together, your marriage was short, and you don’t have any children together. Perfect! Easy enough, right? Right! Except, in South Carolina, you must file a Complaint and Summons, and at a minimum, there must be a one-year continuous separation in which you and your spouse do not share living quarters. By that, the court doesn’t mean separate bedrooms, it means separate houses.

I can hear lots of people screaming, at this point, “Unfair!” or, “Too expensive!” or, “Who will know?”

Let me address these. The law, and therefore the courts of South Carolina, are such that marriage is favored. Thus, if you live together when you are married, the emphasis is placed on sustaining the marriage. South Carolina considers marriage to be an economic partnership, but where there is a marriage, the courts generally take great pains to keep it together where there is evidence that is may be upheld, and living together is given great weight as such evidence. If you really want a divorce, the courts reason, you would no longer live together, despite any economic hardship or unfairness regarding loss of mere property.

As to who will know, the court will. Judges are experienced, they see a lot and they become pretty good at ferreting out the truth. Plus, the parties seeking a divorce must bring a witness who will give sworn testimony regarding his or her knowledge of parties’ living arrangements, or “cohabitating” to the court. If the judge suspects the parties of collusion, the divorce won’t be granted and the parties can be held in contempt. A contempt of court charge may carry a penalty from a fine to jail time.

Now, do you think you want a divorce?  If so, and you and your spouse are in agreement, you have several options that can make your divorce go more smoothly. Not more quickly, but more smoothly.

  • Determine who will file for the divorce.
  • Discuss who will move out of the marital home, and how that will be financed.
  • Seek legal advice before deciding to file yourself.  Even if you ultimately decide to be pro se, you should explore the option of having legal representation.
  • Explore options such as mediation. Most counties are moving toward mandatory mediation for divorce cases, and being prepared to mediate can save time and money.
  • Settle as many issues between you as possible.
  • Be flexible. “Winning” may look different in a few months or years than it does in the moment.