The unfairness of the family court asking litigants if they think their agreement is “fair”

In the South Carolina family court, a standard part of the practice of questioning parties about their agreements before approving said agreements is whether the party believes that agreement is “fair.” If minor children are involved, that process will also include a question about whether the agreement is additionally fair to the parties’ children.

Those questions, answered under oath, have made perjurers out of many South Carolina spouses and parents. Answering that the agreement isn’t fair may result in the court rejecting the agreement and requiring that party to engage in further litigation. And litigants have many good reasons for seeking approval of an agreement they don’t perceive as fair. There are cases in which both parties truly see the agreement as fair and as a result of legitimate compromise of disputed issues. However many cases, perhaps most cases, settle because one party is worn out, lacks resources, or simply doesn’t trust the court system enough to risk trial. Forcing these parties to testify to an agreement’s fairness is a cruel method of suborning perjury.

  • I got stuck with an egregious temporary order and even an unfair agreement that reduces my onerous obligation is better than living under that temporary order for another six months to a year.
  • The guardian’s biased and inaccurate report vitiates my custody case but how can I ever prove the guardian’s bias? This unfair agreement is the best I can expect.
  • I’m paying $100 more a month in child support under this agreement than I should be paying, but I can’t justify spending $10,000 in litigation expenses to achieve justice.

These are all thoughts I can see litigants having while seeking court approval of an agreement they want approved but don’t believe to be fair.

In deciding whether to approve the parties’ agreement, a family court needs to be concerned about that agreement’s fairness, as a family court judge must find an agreement to be “fair” before he or she can approve it. Funderburk v. Funderburk, 286 S.C. 129, 332 S.E.2d 205 (1985). It greatly eases the court’s burden if the parties agree that the agreement is fair–thus the court asks that question.

However, from a party’s viewpoint, the issue isn’t whether the agreement is fair but whether the benefits from approval of the agreement outweigh the risks and rewards of trial. So long as party understands these risks and rewards, and prefers the agreement, the court should approve the agreement.

It is legitimate for the court to inquire whether a party understands the risks and rewards of rejecting the agreement and proceeding to trial before the court approves that agreement. It’s sad but unavoidable that some litigants may seek court approval of agreements they don’t believe are fair. However, it’s an added and unnecessary injustice that we require such parties to perjure themselves about an agreement’s “fairness” in order for them to end their litigation.

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