The Fallacy of Trying to be Fair


“I just want what’s fair!” I have heard this refrain many times from clients in matrimonial litigation. Sometimes, it is the litigant’s rationalization for certain unreasonable behavior. But more often, it is said in exasperation, when discussing the conduct of the other side.

The dirty little secret is that trying to be fair can be extremely hazardous to your financial health. Because the other side has absolutely no interest in being fair. The other side is acting out of emotion, and wants your head on a stick. So when you offer something fair, the other side perceives it as the beginning of the negotiation. In other words, your fair offer is only an opening offer. You have now established the parameters of the negotiation, and the result will not be pretty.

Divorce is both an emotional and financial process. If one party’s main motivation is retribution, trying to be fair will only result in your offers to settle being rejected, over and over again. In such a situation, the party seeking retribution is using the legal system not to be fair, but to punish. The result is frequently financial ruin for both sides.

So what do you do when confronted with an ex-spouse who only wants to punish you? Avoid early discussions of settlement. Streamline the litigation as much as possible. You will settle your case on the eve of trial, when the maximum amount of pressure is brought to bear. With a good trial judge and some luck, you may get a settlement that is “fair” to both sides.