By Stacey H. Langenbahn, J.D.
Attorney-Mediator
Often divorcing couples who believe they have worked out a deal between them want to use one lawyer to answer legal questions, draw up the paperwork, and finalize the divorce at the courthouse. Many are afraid that if each of them has a lawyer, the two lawyers will stir up unnecessary conflict or they will be too expensive. So can you have just one divorce lawyer for the two of you? No. Here is why not and what you can do about it.
Divorce Lawyer's Conflict of Interest
Even if you agree on everything in the divorce and it is “uncontested”, when you file for divorce you and your spouse are legally considered to be opposing parties in a lawsuit. For that reason, it is a violation of ethics and a conflict of interest for one lawyer to represent both the wife and the husband in their divorce no matter how amicable. There are a couple of options for couples who want to limit the role of lawyers: spouses use a single neutral attorney-mediator to help both of them in mediation; or one spouse hires a divorce lawyer.
Option 1: Both Spouses Do Divorce Mediation with a Neutral Attorney-Mediator
A popular option for both spouses to get legal assistance from a divorce lawyer is mediation. In divorce mediation, an attorney-mediator can ethically assist both parties because he or she acts as a "neutral". The attorney-mediator gives both spouses legal information, not legal advice. That means the attorney-mediator educates about the law, does not take sides, and does not represent either spouse.
The attorney-mediator’s role is to help both spouses identify issues, gather information about property and debts, develop options for settlement, and communicate and negotiate resolutions that work for both of them and their family. Because mediation is private and confidential, the attorney-mediator cannot be asked to testify in court about what went on in the mediation except under very limited circumstances.
In states where mediation is done early in a divorce without each spouse having a divorce lawyer, it is much less expensive than divorce litigation. Mediators whose clients are unrepresented generally will reccommend they have attorneys review their agreements before signing a legally binding settlement document. Mediation can also be effective if done with lawyers representing the spouses, but the overall cost and level of conflict in adversarial mediation are generally higher (especially if the mediation takes places right before trial).
Sometimes attorney-mediators can do the mediation and “paper” the divorce as well (draft and file the necessary court documents). However, in some states an attorney-mediator can write a binding settlement agreement for the spouses but cannot draft the divorce legal paperwork. Couples still save lots of money in mediation in such states because they use lawyers only for the limited purpose to review the mediated agreements and to act as scriveners to incorporate them into a divorce decree.
Option 2: One Spouse Hires a Divorce Lawyer
Another option is for one spouse to hire a lawyer while the other remains unrepresented. A lawyer who represents one client in a simple, uncontested, divorce usually charges a flat fee (a set amount of money) for minimal legal services. Those may include a meeting between the client and a paralegal to gather basic information and draft a standard petition and decree (nothing custom); a limited number of phone calls; a meeting with the lawyer to go over the final decree; and entry of the decree and other papers at the courthouse.
When couples agree they will only hire one lawyer, they must fully understand that the attorney-client privilege, and the lawyer’s duty to diligently represent the client’s best interests and provide legal advice go only to the spouse who actually signs the representation contract with the lawyer. That spouse gets all the benefits of the knowledge, experience, and guidance of the lawyer. The other gets nothing and is left to represent himself or herself and to figure out what he or she must do procedurally and strategically after the divorce petition has been filed.
Keep in mind as well that a lawyer who represents one spouse will not negotiate with the unrepresented spouse. The lawyer does not want to risk malpractice by giving the appearance to the client or the unrepresented spouse that he or she is siding with, assisting, or giving legal advice to the unrepresented spouse. Every detail of every issue has to be worked out by the couple themselves. If any disagreements arise between spouses, the case immediately is converted from “uncontested” to “contested” and the lawyer charges thereafter at hourly rates.
One lawyer for one spouse might not be a problem for the unrepresented spouse in a very simple divorce where there is little or no property to divide, no joint debt, no kids, and the spouses do agree on all terms. The unrepresented spouse in such a case might turn to online resources for instructions and use free legal forms to properly follow legal procedure on his or her side. Under these circumstances, one lawyer working for one spouse can be successful and very cost effective for both spouses.
For those who try to do a one-lawyer approach in a more complicated divorce requiring division of retirement assets and jointly owned properties, allocation of joint debt, and/or development of a non-standard parenting plan or custody arrangement, the spouse that is unrepresented quickly discovers he or she is at a distinct disadvantage. The lawyer representing the spouse has to act in the best interests of his or her client, and the lawyer will advise the spouse how to get the most for himself or herself. Disagreement is highly likely to arise, and when it happens, the other spouse invariably must get a lawyer too. If the lawyers cannot work out a deal, the judge will send them and you to mediation. If they (you) still cannot find agreements, they (you) will be heading into very costly, time consuming, stressful, trials and appeals.
So whether a couple agrees to hire one lawyer to represent one of them in an uncontested divorce or uses an attorney-mediator to assist both of them, affordable legal assistance is available when the couple does not want or cannot afford two divorce lawyers.