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I was recently discussing “fairness” with another divorce lawyer. He explained the concept that there are four different theories of fairness:  they are based respectively on Law, Equity, Needs, and Belief.

Fairness based on Law is what we think of most often when we negotiate settlements in divorces. Because a divorce is a legal process, we generally ask the question, “What is the court likely to do?” and then try and and settle the case based on what we think the likely legal outcome would be. For lawyers, this makes sense – it is the framework we are used to working within. Very often for our clients, however, that is not necessarily how they see “fairness”. They often feel that the law itself is NOT fair.

A second approach sees fairness as Equity. In other words, fair is when things are equal. If two spouses walk away from a divorce in roughly similar situations, then some people would define that as the most fair outcome. This could be viewed either from the perspective of simply dividing community assets and incomes equally, or trying to balance the overall financial situation looking at both community and separate property.

The third approach is based on Need. Under this approach, fairness is defined by the degree to which a settlement meets the needs of both spouses. This can look similar to Equity, except that the needs of the two spouses might be different from each other. One might have more medical or child rearing expenses. One may have more separate assets or higher income. Instead of asking the question,”Is it equal?”, it asks the question, “Is each person going to be OK?”

The final theory is based on individual Beliefs. This is the opposite end of the spectrum from Law based fairness. This approach can potentially bring in a lot of factors, but would essentially be about “doing the right thing.” In other words, it brings in various personal beliefs about things that should be factored in to achieve true “fairness”. This might include beliefs like: one person is entitled to compensation for the other’s extra-marital affair, or factoring in how much each party contributed to the community (“I worked harder that my spouse, so I should get more of our property”), or the common belief that “I should be able to live the lifestyle to which I am accustomed”.

No one theory of fairness is necessarily right or wrong.  ut when trying to negotiate a settlement, it can be very helpful to find out what theory of fairness the other side clings to most strongly.