I’m hoping this new post will find you interested enough to spend some of your valuable time traveling down this road with me; and I, of course, always hope that you’ll ultimately find it to be beneficial to your clients and you.
You’ll first need to read the following recently published article to understand what I intend to accomplish with this latest post (this series will be in at least two, if not three, separate parts):
And then read this “follow-up story” which was printed several days later:
Briefly, in Oklahoma after a 9-week trial, the family court judge awarded the wife one billion dollars [if I’m counting the zeroes correctly, I believe that’s $1,000,000,000] … and her attorney stated that this amount was “not equitable” to his client, because the husband’s current worth was approximately $18,000,000,000, and that the wife would appeal the family court judge’s decision.
In an effort to create some measure of scope as to the size of the wife’s award, Forbes Magazine listed the 1000th wealthiest person in the world as having an estimated “worth” of $1.8 billion dollars. I’ll also break it down this way: if your gross income was $100,000 a year, it would take you 10,000 years to earn one billion dollars.
However, in this Oklahoma case, as in so many others in South Carolina and across this nation, the amount of this award had absolutely nothing to do with this wife’s ability to sustain and enjoy the quality of her life and her lifestyle, at its maximal level, forever … rather, it had everything to do with this “fallacy of fairness” which every family court mediator encounters in virtually every mediation where the parties are dividing up “things” which they possessed “as of the commencement date of (their) marital litigation”.
So with the above in mind, take this mini-quiz and answer these basic questions: in your efforts to settle your case, which is more fair for your client – giving her an additional $1,000 in cash from the marital pot or letting her keep an antique lamp which her appraiser valued at $1,500 on the high end?
Next question: which is more fair for your client – having your client keep 100% of his 401(k) retirement account (assume all of the 401(k) is a “marital asset”) which is valued on the date of mediation at $200,000 and, in exchange, giving the wife $60,000 in an immediate lump sum, nontaxable cash payment, or giving his wife 50% of his 401(k) on the date of the mediation? And if you represented the wife, which of these “options” would you believe is more fair for the wife? Which of these “options” would you recommend your client taking … and which of these “options” would your client believe was more fair?
Can you divide one dollar in change equally (50/50) between the parties, and would that division be fair to both parties? But how do you achieve fairness between the parties in dividing the value of a marital residence which the husband’s appraiser valued at $1 million dollars and the wife’s appraiser valued at $1.5 million dollars (for this question, assume that one of the parties wants to keep the possession and ownership of this residence)?
During your mediations have you ever worked with the ubiquitous Equitable Apportionment Worksheet (EAW), and then asked the mediator to “adjust the values” so that in the lower right hand corner it showed each spouse as receiving a perfect 50% of the “value” of everything listed on the EAW (e.g., land, cars, boats, retirement accounts, bank accounts, furniture, furnishings, motorcycles, etc…..)? Why did you do that, and what did you hope to accomplish in showing that “perfect 50-50 division” to your client? Surely you realized that the 50% figure was pure fiction … a perfectly meaningless number. But it certainly did look fair.
In concluding this “Part 1” I want to leave you with the following abbreviated excerpt from the April, 2014 South Carolina Court of Appeals published opinion in the case of Simcox-Adams v. Adams (the opinion was beautifully crafted by Court of Appeals Judge H. Bruce Williams, a former family court judge):
“Finally, we believe equity dictates this result. See Simpson v. Simpson, 404 S.C. 563, 579, 746 S.E.2d 54, 63 (Ct. App. 2013) (citing Ex Parte Dibble, 279 S.C. 592, 595, 310 S.E.2d 440, 442 (Ct. App. 1983)) (stating the time honored equitable maxim that all courts have the inherent power to (do) all things reasonably necessary to ensure that just results are reached to the fullest extent possible). … .” (Emphasis added.)
In Part 2 we’ll most probably “revisit” Simcox-Adams and other related cases, and I’ll want to challenge you on how you view and use your own “notion of fairness” in your (unattainable) efforts to achieve a perfect beneficial result for your clients.