Wednesday, August 18, 2010

Principles of Equity in Family Law

Below is a research paper I recently completed about principles of equity in family law.  Enjoy!

(I thought the 12 equity maxims about 1/2 of the way down are the most valuable part of this post.  All of us have an idea of what "fair" means, but when it comes down to it in a specific case we often disagree.  The 12 maxims help reduce the reliance on subjectivity when deciding what's fair).

QUESTION PRESENTED:  What are the best sources for discussion or description of such principles that can provide framework for evaluating and deciding equity issues that arise in family law cases? 
RULE:  Though family law cases often turn on principles of equity rather than on hard law, those principles of equity constitute more than mere subjective assessments of fairness.

I now identify those equity principles which seem especially suited for resolving family law cases.

My first list is useful for designing a family law court/system; the second is useful for resolving individual family law disputes.

Family law is an area that is often perceived as less procedurally fair than other areas of law  .  Alternatives to traditional adversarial procedure, such as ADR techniques like mediation, are often preferred by both judges and parties in family law matters such as custody disputes.  Thus, in selecting principles of equity or procedural fairness that are best suited for resolving family law cases, it is important to analyze the mechanics, structure, and success of ADR proceedings that are often used by family law courts.  The elements of equity/procedural fairness that should govern the setup of a family law system/court, including less formal litigation alternatives, are:
1.    Adequate notice
2.    A hearing
a.    Audi alteram partem: (let the other side be heard) – formally or informally, each party should have the opportunity to:
i.    Speak verbally
ii.    Ask questions
iii.    Contradict their opponent
iv.    Present his/her case
3.    A neutral judge should:
i.    Declare any personal interest s/he may have in the proceedings.
ii.    Respect by creating an atmosphere in the courthouse that allows litigants to feel that they are important and their case is not trivial, regardless of the wealth, status, gender, or ethnic background of the parties. 
iii.    Sincerely care about the case, show benevolent concern about the litigants’ situation, and treat parties as people and valued members of society by listening to individuals and explaining and justifying decisions which affect them.
iv.    Take into account relevant considerations (such as the facts, law, principles of equity, extenuating circumstances), and ignore irrelevant considerations (such as personal bias).
v.    Make at least part of the proceedings public: for instance, the judgment or order.
4.    Speedy and inexpensive determination of the procedures
a.    Active case management
b.    Setting timetables
c.    Use alternatives to litigation
d.    Ensure the affordability of proceedings either by making them cheap and/or by providing assistance to indigents
5.    Avoid multiple appearances by the same parties on the same or similar issues
6.    Avoid inconsistent court orders
7.    Ensure that parties understand the reason for the outcome by promoting transparency of how decisions are made
8.    Enlist ADR methods

Above I have listed procedural fairness elements useful to setting up a family law court/system.  Because “certain general principles of equity or “maxims” often impact family law jurisprudence ,” I now list 12 equity maxims  that are useful to adjudicating individual family law disputes within such a procedurally fair court or system.

1.    Equity regarding what ought to be done:
a.    Those who generate costs or consume benefits should pay for them.  Qui sentit commodum, debet et sentire onus - He who derives a benefit ought also to bear a burden.
b.    Those who enjoy privileges should be held to an elevated level of responsibility.
2.    Equity will not suffer a wrong to be without a remedy: the judge will seek to use or create some order or injunction to make a fair outcome feasible.
3.    Equity delights in equality: the default outcome is for people in the same position to receive equal benefits (e.g. two parents, absent any additional facts, should get equal custody privileges).
4.    One who seeks equity must do equity: any plaintiff asking the court to impose an obligation on another must be willing to fulfill what obligation the court imposes on her, the plaintiff .
5.    Equity aids the vigilant, not those who slumber on their rights: injured parties must act relatively swiftly to preserve their rights, because defendants may not have access to the evidence necessary to defend themselves if too much time passes .
6.    Equity imputes an intent to fulfill an obligation: if person A agreed to do X and mostly, but not perfectly does so, his near-performance should usually count as full performance .  This maxim overlaps with “Equity looks through form to substance, and an equity court is interested in substantive justice rather than mere technicalities of procedure .”
7.    Equity acts in personam, not in rem : plaintiffs must assert “a right of some significance, as opposed to emotional and dignitary interests. ”
8.    Equity does not require an idle gesture: the court will not issue frivolous or impractical orders, such as ordering that a father may have custody of his children only if he pays a fine by a date in the past, or declare that a divorced spouse must drink a glass of water every second Tuesday.
9.    One who comes into equity must come with clean hands : if Mother says Father owes $900 of spousal maintenance, but she didn’t pay him back for the $600 plane ticket he bought her, then she doesn’t have clean hands.  This maxim doesn’t mean that a plaintiff must be blameless; rather, “unclean hands only applies if there is a nexus between the applicant's wrongful act and the rights he wishes to enforce. ”  This maxim overlaps “in pari delicto: Where the wrong of the one party equals that of the other, the defendant is in the stronger position. ”  “When both sides act with “dirty hands,” neither may advance that equitable argument against the other. ”
10.    Equity delights to do justice and not by halves:  Resolve all relevant inequities between parties, rather than just one.  Example-  “as a general rule, once a court has identified a husband as the biological father of a child, the court will proceed on to rule on issues of child custody and support and any other pertinent issues in order to ‘settle all the equities between the parties. ’”  This overlaps with the maxim, “Equity will take jurisdiction to avoid a multiplicity of suits.”
11.    Equity follows the law: equitable remedies should never be contrary to controlling law.  “Equity works as a supplement for law and does not supersede the prevailing law. ”
12.    Equity will not aid a volunteer: Equity cannot be used to take back a benefit that was voluntarily conferred irrespective of whether the recipient wanted it.  This maxim “protects the doctrine of choice.”  Ex.: during a divorce, Husband leaves his motorcycle at Wife’s home with a note that he gives it to her- equity will not allow him to later retain the gift.

Most elements of procedural fairness, equity, and procedural due process are relevant to resolving family law cases.  


Below are the best six sources I found for describing principles that can provide a useful framework for evaluating and deciding equity issues that arise in family law cases.

1)    John Bourdeau & Rachel M. Kane, Principles and Maxims of Equity, 27A AM. JUR. 2D Equity § 126 (1996).
Part V, “Principles and Maxims of Equity,” lists a number of “Maxims Having Reference to or Governing Court Action” (e.g. equity regards substance and intent, rather than form) as well as “Maxims Applicable to Litigants” (e.g. equity aids the vigilant and the diligent).

2)    Florida Family Law Set, 1 (2010),$FILE/311%20Family%20Law.pdf?OpenElement.

As one of the few states I found with a Family Law Procedures code, this document provides a pithy purpose section articulating some fundamental elements of procedural fairness in family law.

3)    Kevin Burke, Understanding the International Rule of Law as a Commitment to Procedural Fairness, 18 MINN. J. INTL. L. 357, 364 (2009).

This law review article extracted some useful procedural fairness elements from both international rule of law and international family law.

4)    Leonard Edwards, Comments on the Miller Commission Report: A California Perspective, 27 PACE L. REV. 627, 674 (2007).

This document pulls out some interesting findings about the perceived procedural fairness of ADR. 


In one of the most well-researched and refined papers referenced in this memo, Judges Burke and Leben show what elements lead to robust public perceptions of procedural fairness.  The paper summarizes key findings from investigations into elements of perceived procedural fairness. 

6)    Judith S. Crittenden & Charles P. Kindregan Jr., Some Equitable Maxims in Family Jurisprudence, in ALABAMA FAMILY LAW § 29:2 (2010).

The authors identify a handful of equity maxims germane to family law adjudication.  Alabama has a richer history of equity courts than most states, and this article represents the predominance of sophistication of equity principles of family law found in Alabama cases and practice guides.

1 comment:

  1. Thank you for your diligent work and presentation. A very useful article.


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