Practicing Family Law In The 21st Century – Series Post No. 4 – Part 2: The Attorney’s Dilemma – “The Attorney’s Notion Of Fairness – Trying To Attain The Unattainable”

In Part 1 of this series post I tried to frame a “dilemma” that family court mediators frequently encounter in their efforts to reach the shared understanding with the parties and their attorneys that achieving a satisfactory (and satisfying) resolution of the litigants’ case has very little, if anything, to do with the “cosmetics of fairness” (e.g., the “look” of fairness versus the actual substance of a workable agreement).  And I had provided a “link” to an amazing Oklahoma family court case where the wife was awarded one billion dollars in cash and other assets, but was not at all “satisfied” with the decision, finding it to be inequitable (in other words, it didn’t look fair, based, apparently, on the total approximate value [$18,000,000,000] of the husband’s “worth”).

I concluded Part 1 by including an excerpt from the April, 2014 South Carolina Court of Appeals opinion in the case of Simcox-Adams v. Adams; and in transitioning into Part 2 in this series, I want us to “revisit” an interesting part of that excerpt:

“Finally, we believe equity dictates this result … ‘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.'”  (All case citations are omitted.)

Re-read that excerpt again very carefully.  Where would the word “fair” fit into this maxim?  Could “fair” be inserted in place of the word, “just” (e.g., “…to ensure that fair results are reached to the fullest extent possible”).  But wait a minute, why would this maxim include the words “to the fullest extent possible“?  Why would we need to conditionally qualify the terms “just” or “fair” with the words “fullest extent possible”?  After all, fair means fair, doesn’t it?  And as a family law attorney, certainly we know what “fair” means in the resolution of family court litigation … and your clients certainly know what “fair” is supposed to look like.

And so we have now arrived at every family law attorney’s dilemma – the “crossroads” where the attorney’s notion of fairness must square up with the client’s … where the attorney is compelled by circumstances only marginally within his or her control to attain the unattainable – perfect fairness.

Let me give you two cases which I would urge that you print out and show your clients in preparation for settling your client’s case at every mediation.

First, in the case of Wooten v. Wooten, S.C. Sup, Ct., Opinion No. 25977 (2005), the South Carolina Supreme Court stated, in part, “… as we have done in deciding these appeals, the family court should focus on a fair distribution of the entire marital estate. The family court should consider not only financial factors (including tax consequences, if any) affecting the distribution of the marital home, but also the physical and emotional well-being of each spouse as it relates to the marital home. In other words, decisions relating to the equitable distribution of the marital home should not always be based solely or primarily on a cold, rational calculation of dollars and cents. The family court is free to consider other, less tangible factors asserted by a spouse, weighing those in concert with the financial impact on the parties.” (Emphasis added)

What?!!!  Since when did “feelings and emotions” factor into a family court judge’s decision to fairly divide a marital asset which can be quantified (given a financial value) and then divided.  What is fair about a judge giving one spouse the sole possession, use and ownership of a marital residence which is appraised at $300,000 and, as a quid pro quo, giving the other spouse $500,000 in cash assets?  Which client would be more satisfied with this outcome – the client who wanted the house and got it, or the spouse who got the cash but who also wanted the house?  Remember that Wooten held that these decisions “should not always be based solely or primarily on a cold, rational calculation of dollars and cents”.  Consequently, if at mediation your client is completely satisfied with being given ownership of the marital residence, but your notion of fairness is to “equalize the values” and you then spend your time and energy trying to dissuade your client from “taking that offer”, you’re going to have a real problem if your case doesn’t settle at mediation because you supplanted your “notions” for your clients, and your trial judge then rules that the marital residence cannot be divided “in kind” and orders that it be sold at either a private or a public sale (which is, trust me on this one, always the easiest decision for a family court judge to make).

The second case is Dawkins v. Dawkins, 687 S.E.2d 52, 386 S.C. 169 (S.C., 2010):

“We take no issue with the proposition that an equal division of marital property will often be “appropriate.” We further agree that a 50%-50% division would be appropriate here. But that does not make the attempted 60%-40% division inappropriate or an abuse of discretion. The purpose behind case law’s imprimatur of a 50%-50% division was to foster amicable resolutions in family court matters and provide guidance on what would in effect be a safe harbor in most cases in the division of marital property in a long-term marriage. Yet what was intended as guidance on an “appropriate” division has seemingly mutated into a mandatory division. It is well-settled that the apportionment of marital property is within the discretion of the family court. Wooten v. Wooten, 364 S.C. 532, 542, 615 S.E.2d 98, 103 (2005). (Emphasis added.)

There’s nothing more to be said on this point.

Finally, if you, the attorney, can neither know nor predict your client’s future, then you can never come close to reaching perfect fairness in your agreements (because perfection is unattainable) … and you should make absolutely certain your client knows that “fairness” has nothing to do with a successful settlement, but rather everything to do with meeting your client’s immediate and reasonably known and anticipated future needs.

In the final part (Part 3) of this post I want to discuss with you why never settling a family court case is always the easiest option for the attorney, and, conversely, is always the absolute worst option…and the last resort…and the worst case scenario for the client.  In that post I’m going to explore the “client’s dilemma – sacrificing a meaningful and satisfactory resolution of litigation because of a complete misunderstanding of what “fairness” means inside a South Carolina Family Court’s courtroom”.