18 Dec Can one lawyer represent both parties in a divorce?
Sometimes couples who are on amicable terms will come into my office and ask whether I will represent both of them in their divorce. These couples usually believe they agree on all issues, and don’t want to waste money hiring their own respective attorneys.
With a divorce on the horizon, it’s understandable why couples might want to save money, but this is absolutely not the area that you should cut corners on.
As a divorcing couple, your interests are never going to be fully aligned.
The nature of divorce is two people taking separate paths in life. Things may seem clear and agreeable to you both now, but potentially unforeseen issues that you didn’t consider may arise where the two of you don’t see eye to eye. Or, for example, if your spouse changes his or her mind about alimony or child support, you’re going to need representation.
It’s actually an ethical violation for an attorney to consent to the representation of both individuals in a divorce case.
There is an inherent conflict of interest. It’s impossible for a lawyer to be loyal to one of the two parties without compromising his or her duty to the other. A lawyer would also open him or herself up to a malpractice suit if either party believes the dual representation was detrimental to them.
Never have the same divorce lawyer represent both you and your spouse.
This is especially true if there are contested issues (ones you don’t agree on), or where you have children, or plenty of assets to divide. In fact, litigation is the path that most divorces take. While over 95% of divorces end in an out-of-court settlement agreement, you still need an attorney well-versed in divorce and family law to help you navigate the litigation process.
The advice above also applies in cases where the divorce is uncontested, even when you choose an alternative to litigation. Below are other ways to procure a divorce that might help save you time and money, depending on the circumstances of your case. However, I strongly suggest you have an attorney represent you, no matter which process you choose.
- Doing Your Own Divorce
This may be a relatively inexpensive and fast way to get divorced, but when you handle your own divorce, you take the risk that you might make mistakes that are irreversible. I do not suggest this route for couples that have been married for several years, have kids, or have substantial assets. However, if you do choose to proceed with handling your own divorce, you should have an attorney review all final documentation.
A neutral mediator (who may or may not be a family law lawyer, but who should nevertheless be very knowledgeable about family law) helps the parties come to agreement on all divorce issues. This is a great choice for couples with kids since it’s a less hostile environment than litigation, less public, and can lead to a better long-term relationship with your soon-to-be ex-spouse.
Mediation speeds up the process of reaching a reasonable settlement, which saves couples time and reduces expenses. However, both parties still need to consult with their individual attorneys throughout the process, as well as prior to signing any divorce settlement agreement.
I don’t recommend mediation for couples who are engaged in high conflict, or are dealing with disputes regarding custody and financial matters. If the climate is adversarial (and in most cases, it is), a spouse can hide assets or income. All financial information in a mediation is voluntarily disclosed, and no subpoena is issued.
Finally, this would be a poor choice for any couple that has a history of one spouse dominating the other (which includes abuse of any sort), since it may only perpetuate their relationship patterns and result in an unfair settlement.
- Collaborative Divorce
This option is suitable for a couple that mutually agrees on, and has resolved (either with or without the assistance of their respective lawyers), every issue in the divorce, and agrees that there will be no litigation. Each spouse should hire their own attorney, and a judge will endorse the final agreement. While you may still have to appear in court, it is quicker and less costly than traditional litigation.
Again, I don’t recommend this route if you have any concern that your spouse may try to hide assets or income, since the process of disclosure of financial information is voluntary. Another drawback is, if settlement is not reached, you’ll need to return to the drawing board with new counsel since the lawyers used during collaborative divorce may not represent you in litigation.
No matter which process you choose, you should hire a lawyer to represent you in your divorce.
At The Law Offices of Damian Nolan, our divorce lawyer has handled more than 1,000 divorce and family law matters in Southern California. He understands the sensitive and complicated nature of divorce, and has extensive divorce law expertise and courtroom experience. Our lawyer can help you decide which process is best suited to your particular circumstances, and represent you every step of the way.
Contact the Law Offices of Damian Nolan today for a free consultation to discuss your case.