Divorce Laws Are Not Designed to Be Fair

During one of your initial sessions with your attorney, she will undoubtedly sit you down and explain how the laws that govern your case apply to your situation.

If after listening to what she has to say, or perhaps midway through the discussion, you may start to dislike and disagree with what you are being told about the likely outcome of your case.

And if you conclude the law isn’t fair—or at least not fair to you—take comfort in knowing that your conclusions are not that far off the mark. Sometimes when the law is applied to a specific set of facts the outcome is not fair.

Divorce law is rife with examples that support this point. Forget about your case for a moment and let’s look at the case of Mr. and Mrs. Jones.

Most states will allow a spouse to file for divorce after being separated for a designated period of time. There is a one-year separation requirement in North Carolina. That means if Mr. Jones moves out of the house and stays gone for one year, he can file for divorce and although Mrs. Jones may not want a divorce, there is nothing she can do to stop it.

Is it fair that after spending the best years of her life as a devoted and loving spouse Mr. Jones can unilaterally take the steps needed to dissolve their marriage?

Is it fair that Mr. Jones can force Mrs. Jones to break a vow that she is committed to keeping?

No. Of course it isn’t.

But the divorce law was not intended to be fair to Mrs. Jones, or even to Mr. Jones for that matter. The law was enacted to maintain order by providing a practical, uniform and relatively efficient way to dissolve marriages. Mrs. Jones may not agree with this assessment since she is the one who wants to remain married, but do you think she would feel differently if she were the one who wanted the divorce? If she were the one seeking the divorce, do you think she would think it was fair that she could not get a divorce without Mr. Jones consent?

Mr. and Mrs. Jones are seeking different outcomes, King Solomon could not draft a law they both thought was fair. That is the reason our legal system doesn’t concern itself with “Did the application of the law lead to an outcome that everyone thought was fair?” Rather it is founded on a broader more objective inquiry: “Was the law applied fairly and everyone treated the same under the law?”

And that is where your lawyer comes in. No, she can’t control the ultimate outcome of the case or guarantee that you get everything you want. What she can do is work hard to ensure that the judge is fair in applying the law to the facts of your case and she can zealously pursue the best possible outcome under the circumstances.

With that said, at the end of the day, once you have had your day in court and the judge rules on your case, if you find that you are still questioning the fairness of what has happened to you, perhaps you can find some solace in knowing that while the legal system in this country is far from perfect, it is considered by many to be the best and fairest system in the world.


Photo Credit: Visual Hunt


Posted in General Information, Stay Encouraged.

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