It’s what I call the divorcee’s lament.  I hear it in court, mostly from self-represented litigants.  I hear it when I consult with clients.  I hear it in mediation.  Say it with me:  “that’s not fair!”

No, what’s happening in divorce court is not fair, and most people leave family court feeling like they’ve been handed a raw deal.

We expect our judicial officers to render fair and just verdicts.  Sadly, the problem is not the very honorable and hard-working members of our family law bench.  I am often surprised at the ability of judges and commissioners to sort through the garbage presented by the parties and hand down a result that is not just legally correct, but wise for the family before them.

The difficulty is, the judicial officer is charged with following the laws (mostly the California Family Code and Code of Civil Procedure).  Our law makers did not design a fair and just law; they designed a law designed to reduce conflict, enforce a duty of support, divide marital property and promote the best interest of children.  Considerations of fairness or justice are secondary.

Consider a typical marriage vow:

I, [name of bride or groom], take you, [name of groom or bride], to be my lawfully wedded [husband/wife], to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.

A vow is another name for a promise, a covenant, a contract.  It is a solemn promise to do something no matter what.  One would expect a just judge to enforce a promise like this.

But when you divorce, you find out what you really bound yourself to when you said “I do.”  I call this the standard marriage contract.  Here’s the Reader’s Digest version:

“You and I will continue to live together and mutually support one another financially and raise our children together until one of us decides the marriage has broken down. Once one of us makes that decision, the marriage will be dissolved, even if the other person feels the marriage has not broken down.  The financial duties of spouses to support one another financially shall continue as long as it takes for the spouse earning less to reach the standard of living we enjoyed as a couple, even if it takes the rest of our lives.  We shall live separate and apart, divide everything we got during our marriage 50-50, and our children will shuttle back and forth between our homes.  A judge of the California Superior Court shall be appointed as a super-parent to make sure each of us behaves in accordance with our children’s best interests.”

I’m not saying this to complain; quite the opposite—in divorce everyone does better when they accept the reality that family law is not fair.  Or perhaps more accurately, fairness and justice are only one of many concerns that the law addresses; they are not the law’s primary concerns.

It follows that spending your energy and money on obtaining a fair or just result means wasting your energy and money.

I would challenge you, reader, to think of divorce as a time to reassess your life’s priorities.  What type of parent have you always wanted to be, and how can you make that happen?  How can you divorce from your spouse without divorcing your kids, your friends and your family?  What have you always wanted to do for a living, but been to afraid to do it?  Have you always wanted to go back to school?  Travel?  Play the violin?  What resources are there in the  marital estate, and  how can you best employ them to make that happen?

You’ll find that once you have clarity on these points, the right decision at each point in the process will become self-evident.  Whereas, if you cling to fairness, you’ll always be wondering why your decisions have lead to outcomes that are inconsistent with your goals and values.

I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

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