I have a bone to pick with my fellow family lawyers. Some of my brethren and sistren have a tendency to conflate what the law dictates should happen and what is right. There is a basic philosophical rift in our profession which manifests itself in the answer to this question: if a couple agree on a divorce settlement that is outside the range of what a court might have ordered -- that is, it's not a result you'd get by applying the divorce laws of our state -- is that ok or not? I say yes, it's ok. A number of my colleagues say no, it's not.
I understand their position even though I don't buy it. Divorce is, after all, an economic transaction. At its core it involves dividing one pile of stuff into two piles. Anything one spouse puts in her pile the other loses from his. Our laws create a roadmap to follow by defining which stuff belongs in the pile and how to distribute it. If people don't agree, these laws are invaluable. But I see them as the default, not a Platonic ideal to which all should strive. Suppose a couple think that a fair way to divide up the pile means including something the divorce code says isn't "marital property" to begin with? Like an inheritance one spouse received. Maybe a husband who received an inheritance feels that it should be shared with his wife of 25 years, even though he doesn't have to, because they were both anticipating it to fund their retirement. Or maybe a wife has no interest in being compensated for her share of her husband's successful business, even though she could be, because he built it all himself and she doesn't feel comfortable taking a cut.
Some divorce lawyers I know are very negative about such decisions and try hard to talk their clients out of them. And that's because they really, sincerely, believe that the guy giving his wife a portion of the inheritance, or the woman waiving claim to her husband's business, is making a bad decision because they could get more from the pile. In other words, they think if their client is willing to take less than he is entitled to under the applicable law, that's not the "right" result.
I adamantly disagree. And the longer I practice, the more sure I am of my position. Right is a totally subjective concept. If it feels fair to the couple divorcing after 25 years of marriage that the husband's inheritance should be put in the pile to share, then it is fair. It was their marriage and it is their divorce. Not the Commonwealth of Pennsylvania's divorce. Not the lawyers' divorce. Theirs. As long as they understand what their legal rights are - and that is, of course, key; they absolutely need to be fully informed - if they knowingly choose to take a different path, that's fine. And that path becomes, therefore, their right result.
When this happens, the lawyer's job -- after testing the decision to make sure the client understands that the result deviates from what the law would provide and determining that the client is not being bullied or intimidated -- is to support the decision. We don't know best what is right for our clients; how could we? We work for them. Our job is to counsel them thoroughly and to advocate for what they want, not for application of a generic template.
In this DIY era, seems like more lawyers are joining my camp. For sure, we have more clients now than we did ten years ago who are very clear about wanting to work out agreements with their spouses themselves, on their own terms. I seem to be playing the back-of-house role in more cases than I used to; I'm often the kitchen staff rather than the maître-d. And I'm very happy there, providing guidance and feedback, as my client works her way toward her own definition of right.
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