As a divorce mediator, my role is to facilitate discussions between the two people seeking a divorce in order to come up with the terms and conditions that will be reduced to writing in the couple’s Separation Agreement. Although I am an attorney, when I am facilitating mediation sessions, I am prohibited from giving legal advice. I can, and I do, provide my clients with a great deal of legal information. The most salient bit of legal information I share is this: The judge needs to find, as a matter of law, that your Separation Agreement, is fair and equitable. That’s it: fair and equitable.
So what does “fair and equitable” mean?
Now, I’m going to answer as a lawyer does: It depends.
“Fair and equitable” depend on the specifics unique to the two people divorcing and to the specifics of the marriage itself. “Fair and equitable” serve as a standard for the very personal choices about assets and children that the divorcing couple will make AND the standard by which the judge will assess the merits of the Separation Agreements that end up in the pile of cases on the judge’s docket.
So while Lady Justice wears a blindfold–a symbol that supports the aspirational ideology that all persons are treated equally under the law–this does not mean that she treats every matter blindly. The guiding principle on which a family and probate judge uses to decide whether to grant a divorce is “fair and equitable,” and this is the guiding principle my clients are reminded of.