Fair? What to Expect in Divorce Court

Equitable” is a legal term that can be used to describe the division of property and debts in a divorce proceeding. Under Alabama law, divorce courts are “Courts of Equity,” rather than “Courts of Law.” When I answer questions from potential clients contemplating divorce, I generally define equitable as “what the Judge thinks is fair if the parties can’t agree and go to trial.”

Whenever I say this, I remember one of my favorite Cumberland Law School professors, Professor Stone. Professor Stone often challenged us to define the terms: “fair, reasonable, and just.” Of course, none of the 1Ls in his Contracts Law course could manage to articulate a satisfactory response that could survive Professor Stone’s scrutiny. Here’s his bio page on the law school website:

https://www.samford.edu/cumberlandlaw/directory/Stone-Jr-R-Thomas

I’m sure Professor Stone is still happily in the business of searching for an answer to that question that can survive scrutiny.

The question of what’s fair, or equitable, in a divorce also reminds me of the scene in The Big Lebowski in which the Nihilists confront The Dude, Walter, and Donnie outside of the bowling alley. I won’t link to the scene here because of the profanity, but the Nihilists decry the unfairness of the situation and mayhem ensues. In consolation, here’s an amusing article about divorce shenanigans:

https://www.huffpost.com/entry/divorce-court-horror-stories-straight-from-attorneys_n_571f9b9fe4b0b49df6a92312

Here’s the bottom line: If you seek what’s fair, reasonable, and just, you’ll get it from the Judge, according to his or her definition of those ideas and the evidence presented. You’ll also almost always be disappointed in some way or the other. So, what’s the solution? Here are three things you can do to set yourself up for success in your life after divorce:

  1. Execute a pre-nuptial agreement. This is mostly for you second an third timers out there and you have to do this before you marry. Settling those property issues up front when you’re still in love and feeling good about your prospective spouse will take some of the pain out of divorce if you lose that lovin’ feeling.
  2. Remember that your estranged spouse is not, in reality, a monster, hell-bent on ruining your life. It’s more likely that they’re acting out of hurt, frustration, and confusion as well. Failure to communicate is at least partially responsible for your divorce. You need an attorney who can turn your feelings into an articulable plan to resolve the issues and communicate that vision effectively to the other side.
  3. Be willing to negotiate. In the absence of physical abuse of you or your children, or other actual criminal activity, the Judge is not going to sock it to the other side. I know that story you have in your head about how you are right, and blameless for all of the negativity in your marriage sounds good playing inside your head, but the Judge doesn’t buy it. Coming to terms with your spouse short of a trial will save you time, emotional capital, and money.

If you’ve made it this far in the post, I may be the right attorney for you. Contact me at (251)445-0891 and we’ll set up a time to discuss your circumstances and possible resolution.