Making a difficult situation easier or harder

In most areas of law, an adversarial action becomes a zero-sum game, one where the winner takes all, one where the defendant’s loss is the plaintiff’s gain. Marriage and family law, however, recognize that actions must be what is called “fair and reasonable,” which, for example, is the standard for approving a marital separation agreement.

Fairness, in turn, depends upon the parties acting in good faith, “an honest belief, the absence of malice and then absence of design to defraud or seek an unconscionable advantage, and an individual’s good faith is concept of his own mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone.”

Good faith means doing the right thing without being done: “[a]n honest intention to abstain from taking unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious.”

By comparison, bad faith is self-evident. In family law disputes, judges and attorneys have no difficulty determining when a party acts in good faith and when a party acts in bad faith. Taking unfair advantage of a position of strength – a husband who exploits the trust his wife placed in him and signs what he tells her to sign – is acting in bad faith.

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