January 19, 2015

How to Get What is Fair in Your Divorce

Categories: Collaborative LawDivorce

77931833Can you get what is fair in your divorce?

Many people start by telling their attorneys that they want what is “fair” in the divorce only to be told that this is not realistic. “Fair is what happens in St. Paul for 11 days before Labor Day” is the common expression aimed at averting divorcing people from striving for a fair settlement.

I understand those concerns about “fair”. Divorce can be so emotional that nothing presented as a settlement offer will be regarded as “fair” and settlement discussions can therefore drag on forever. Indeed, if you are faced with a divorce that you do not want, the notion that any proposal is “fair” can seem offensive or even inflammatory. Also, in settlement negations, “fair” is often used as an accusation. “I have offered something fair. Why won’t you accept this?” Of course, in a divorce a husband and wife are likely to have different understandings of fair. Describing your offer as “fair” as compared to your spouse’s offer, (which by implication must be unfair), is likely to feel insulting to your spouse and will not be productive.

Despite all of this, I think it may be a mistake to discard notions of fairness altogether.   Indeed, while we all have different ideas about what truly is fair, it is important, sometimes even crucial, that certain things seem fair, at least to a degree. A divorce settlement that one or both parties strongly believe is unfair is likely to unravel or create problems if it is not addressed. Indeed, the success and durability of a divorce agreement may depend a great deal on whether the agreement is viewed as fair by the parties.

To get an agreement that is durable in the future, it may be important to pay some attention to what you and your spouse perceive as fair. At the same time, in order to get past the gridlock that arguing about fairness can create, it is equally important to be flexible in our ideas of fairness and to work toward getting a better understanding of what lies underneath the feeling of unfairness. If the sense of unfairness has more to do with an unmet emotional need, (which is common in divorce), it may be helpful to seek the assistance of counselors or coaches to help you think of how those needs can be addressed. Similarly, if there is a tangible part of the divorce agreement that feels fundamentally unfair to both spouses for legal or financial reasons, it may be necessary to go deeper into their understanding of the finances or the law to help address some of these fundamental concerns.

The great challenge in the divorce world is that, generally, you are dealing with areas of scarcity and loss and narrow definitions of fair can almost never be met. However, for people who are willing to practice some measure of empathy and to work to try to view the fairness through the lens of the other spouse, notions of fairness can be a powerful tool toward finding resolution. For more information on how this can be done, and for professionals with skill in addressing these issues go to www.collaborativelaw.org or www.divorcechoice.com.

Ron OuskyABOUT THE AUTHOR
Ron Ousky
Attorney, Ousky Law Firm

Ron Ousky is a Collaborative Attorney and mediator who has worked with divorcing families for thirty years and focuses on helping his clients find better outcomes through Collaborative Practice, mediation and other creative alternatives. Ron is also the co-author of The Collaborative Way to Divorce, and has trained divorce lawyers throughout North America and in Europe. He is also the co-founder of the Collaborative Alliance, an office sharing suite in Edina, that brings lawyers, mental health professionals and financial experts together to find better solutions for families. To learn more about Ron and his practice, go to www.Ousky.com

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