The Concept of Fair in Collaborative Divorce
What is FAIR?
- A state-wide event that comes to Dallas every October
- In the eye of the beholder
- A purely subjective term
- A four letter word
- An ineffective approach to divorce
- According to Webster : Fair is In accordance with rules or standards; Without cheating or trying to achieve unjust advantage
- In Collaborative Divorce, replaced with the word ….INTEREST
One of the many strengths of Collaborative Divorce is the premise that INTERESTS usurp the word FAIR when negotiating property division and children’s issues.
The focus in Collaborative Divorce is on achieving each spouse’s INTERESTS or needs, while maximizing the estate, and addressing the best INTEREST of the children.
The following simplistic though obviously extreme examples illustrate the futility of applying subjective standards of FAIR.
If both spouses want to be awarded the house in the divorce, the pure FAIR standard would dictate that the house be cut in half, as King Solomon might have done. If both parties want primary care of their two children, the FAIR standard might have each parent caring for one child. Arguably such a solutions are FAIR, though totally unworkable. Collaborative Divorce approaches such difficult and heart wrenching issues of divorce by casting the FAIR word aside and instead focusing on INTERESTS .
What is each spouses’ INTEREST in the house? Why does each feel that she/he needs the house? If it is because Wife fears she cannot qualify to purchase another property, the team goal then becomes finding a means in the property division which will advance the Wife’s ability to purchase a home, such as trading more cash funds for Wife to apply to a down payment on a house , in return for more retirement dollars for Husband.
The team explores even further, looking to outside resources like divorce mortgage experts and co borrowers. If Husband wants the house because he hopes it will make the children want to spend more time with him, one INTEREST based solution might look to guaranteeing Husband more parenting time with the children so he can more willingly give Wife the house. This is merely one scenario of resolution for such an issue, but the spouses and the team have unlimited solutions based upon the INTERESTS of that particular couple, rather than on what is FAIR by other subjective standards.
The classic story of the ORANGE illustrates the futility of fairness.
Two children must share a single orange. Not Fair they bellow….. The FAIR parent cuts the orange in half and watches as one child squeezes the juice and discards the peel, while the other child uses the peel for an art project and discards the juice and pulp. Had the parent asked about INTERESTS, the outcome would have been far more gratifying to everyone. So it is in the artful negotiation process of Collaborative Divorce, with spouses and team shifting from the vague subjective FAIR standards to genuine personal INTERESTS.