Is All Fair in Love and War? Lessons for Marriages, Divorce, and Separation Agreements

fair dealing in a separation agreement is like golf handicap systemCommon separation agreement ideas:

We’ll just split things down the middle. That’s just the fair thing to do.”

“We just want to be fair so we’ll add it all up and split it 50/50.”

These are reasonable ideas.

But does that mean they are “fair?”

What Do You Mean? Of Course it Does!

Does fairness mean things need to be equal?

Many think so.

If that’s the case then why do golfers follow the USGA Handicap System?

Why let some kids use training wheels longer than others?

Or, why do educators modify classroom instruction for kids who have trouble learning?

Interestingly, these are unequal ways of creating fairness for golfers and children.

Yeah, But You Can’t Compare Biking to Divorce and Marriage

Actually, you can.

Do you know what often happens when families see fairness as equality?

Problems!

The reality is that we are all different.

We have different temperaments. Different strengths. Different weaknesses.

We also have different needs.

Let’s take the example of a divorcing couple’s home.

It is common for a separation agreement to stipulate a sale of the marital home. I often hear, for example, that it’s “only fair” to sell the house, pay off the mortgage, and split the profit 50/50.

This certainly is equal.

But is it “fair” if the wife has no alternative living situation, she will still not have enough for a new apartment or down-payment on a condo, and the husband is moving in with his parents at no cost?

Both need a place to live. One has a no-cost option, and one has a high-cost option that will accrue debt. In this case, it might be “fair” for the wife to keep the house, and to split the other assets in a different manner.

It’s not equal, but it sure seems fair.

So What About the Marriage Part?

Is it fair if your spouse goes out with her friends one night per week when you only go out once a month?

Maybe, if her friends are important to her and she’ll get stuff off her chest.

Is it fair for your spouse to go camping with boys for a weekend while you stay at home with the kids?

Maybe, if it re-charges his batteries.

Is it fair for your spouse to spend more on clothes this year than you?

Maybe, if her size changed and she just got a new job.

OK, OK…But What Does This Have To Do With a Separation Agreement?

Everything.

After all, the Massachusetts divorce laws stipulate that the court will use a standard called “equitable division.” This does not mean that your things have to be divided exactly in half, but it does mean that the decision has to be fair.

Wait? I thought things HAD TO BE EQUAL in order to be fair!

Fair does NOT mean equal.

Fair DOES mean giving people what they need to be successful.

Bottom Line…

Trying to make equal decisions in marriages and divorces is possible.

But probably won’t get you what you need.

Trying to make fair and reasonable decisions in marriages and divorces might be harder.

But it will improve communication, decrease resentment, and far more likely give you both what you need.

Give it a shot.

After all, that would only be the fair thing to do.

Please share by commenting below — I’d love to hear from you!

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About the Author ()

I help families resolve conflict through family mediation and divorce mediation in Massachusetts. My services include mediation for co-parenting disputes, marriage problems, separation and divorce, parents and teenagers, and family conflicts. The goal of my mediator’s blog is to help teach or remind readers of helpful communication and conflict resolution techniques that can be used in their relationships. I live in Natick, MA with my wife, son and dog and mediate throughout the Metrowest Boston region. Please note that my name is spelled Ben Stich, not Ben Stitch.



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Comments (6)

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  1. St. Clair Miller says:

    Great article

  2. Gerry Unger says:

    Your points are well taken, and a reminder of how the system is supposed to work. Unfortunately reality in many cases has proven the opposite.

    • Ben Stich says:

      Thanks Gerry. For sure…but if even one divorcing person out there reads this and is influenced by it then we’re still moving forward! I appreciate that you read and commented! Come back anytime.

  3. Alan Jacobs says:

    Excellent article Ben. Just the other day I had a client call me concerned that she needed a “divorce attorney” to look over her agreement with her spouse to see if it was “equitable.” It took a while for her to see that “equitable” was in the eyes of the beholder and very specific to her and her spouse’s situation rather than something that could be defined “legally.”

    • Ben Stich says:

      Thanks Alan! I have great respect with how you guided your client by helping her reflect on whether her interests were met, rather than her rights maximized. And, what you probably provided was less lucrative for you than had you taken a different approach to her question about equitability. Thanks for commenting, Alan — always great to hear from you.

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