Sunday, December 2, 2007

Divorce: A Reminder of Some Good Advice

From Indiana Family Law Blog comes a reminder about This post, Divorce Preparation: Step 13 - Be Good, from Grant Griffiths' Kansas Divorce & Family Lawyer Blog.

Best behavior has its rewards and nice guys do not always finish last.

A long time ago and across the Atlantic in England, the courts of equity heard divorce cases and to this day equity underlies our divorce laws. Since 1851, Indiana combined its equity courts with its law courts. What has this to do with behaving better than your spouse?

Equity had something called maxims of equity, and the following are two have a point for our purposes here:

One who seeks equity must do equity

In order to receive some equitable relief, the party must be willing to complete all of their own obligations as well. Moreover, the defense of "unclean hands" lies whenever the conduct of a plaintiff in equity has been iniquitous. Snidely Whiplash would not be tossed out of a court of law, but his equity suits would almost certainly turn out badly.

One who comes into equity must come with clean hands

It is often stated that One who comes into equity must come with clean hands. In other words, if you ask for help about the actions of someone else but have acted wrongly, then you do not have clean hands and you may not receive the help you seek. For example, if you desire your tenant to vacate, you must have not violated the tenant's rights.


  • Equity will not permit a party to profit by his own wrong

For instance, in Riggs v. Palmer (1889) 115 N.Y. 506, a man who had killed his grandfather to receive his inheritance quicker (and for fear that his grandfather may change his will) lost all right(s) to the inheritance.

IN D&C Builders v. Rees (1966) a small building firm did some work on the house of a couple named Rees. The bill came to 732 pounds, of which the Rees had already paid 250 pounds. When the builders asked for the balance of 482 pounds, the Rees announced that the work was defective, and they were only prepared to pay 300 pounds. As the builders were in serious financial difficulties (as the Rees knew), they reluctantly accepted the 300 pounds 'in completion of the account'. The decision to accept the money would not normally be binding in contract law, and afterwards the builders sued the Rees for the outstanding amount. The Rees claimed that the court should apply the doctrine of equitable estoppel, which can make promises binding when they would normally not be. However, Lord Denning refused to apply the doctrine, on the grounds that the Rees had taken unfair advantage of the builders' financial difficulties, and therefore had not come 'with clean hands'.

So, you better be good and let the other side be the jerk.

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