Because divorce can be very expensive, many people look for ways to reduce legal fees and costs. Divorcing spouses often wonder whether they should share an attorney with their soon-to-be ex, especially if they've already worked out the details of their case. But, generally speaking, a "shared attorney" arrangement is simply not acceptable. Under virtually every state’s rules of professional conduct, divorce lawyers cannot represent both parties in a divorce. The rules governing lawyer ethics prohibit attorneys from representing two clients with conflicting interests — and that includes divorcing spouses.
Even if you and your spouse agree on everything in your divorce, you’re still technically considered opposing parties in a lawsuit. Because of your competing interests, an attorney can’t ethically represent you both in a divorce, no matter how agreeable the terms are to each side. Working with opposing parties in a lawsuit would create a "conflict of interest" for any divorce attorney. However, there is one circumstance where an attorney can help you and your spouse resolve your divorce.
Mediation With a Neutral Attorney
Couples who can resolve all of their divorce-related issues on their own or with a little help from a mediator may use an attorney-mediator to prepare their divorce agreement. Mediation allows couples to resolve their divorce without the time and expense of a trial. An attorney-mediator can ethically help both divorcing spouses reach an agreement by acting as a neutral third party. A mediator’s role is limited to the following:
- helping spouses understand the law
- helping spouses fill out forms and exchange financial disclosures (most mediators will do this)
- helping spouses identify the main issues in their divorce (for example, property, custody, and alimony)
- helping spouses come to agreements on their divorce issues, and
- drafting divorce settlement agreements.
Everything discussed in mediation is strictly confidential, so an attorney-mediator can’t be forced to testify in court about anything that comes up during process.
Mediators cannot take sides or provide any legal advice, so the biggest drawback of attending mediation without your own attorney (at your side or behind the scenes) is that you may not know for sure whether your legal rights are fully protected. To do so, you would need to hire an independent attorney to advise you about the impact of a divorce settlement.
Hiring one attorney-mediator can save money for couples trying to minimize divorce costs. However, be aware that it can prove costly if you don’t fully understand your legal rights in a divorce. Make sure you know your rights before agreeing to split the bill on an attorney-mediator.
Can I Ask My Spouse's Divorce Attorney for Advice?
Just because your spouse hires an attorney doesn’t mean that you need to rush out and find your own lawyer. But if you and your spouse have already resolved all the issues in your divorce, your spouse's attorney can prepare a draft settlement agreement. You may not feel that you need to hire your own attorney to review the proposed agreement if your divorce is very simple, you understand your legal rights, and you are comfortable with the settlement.
But remember, your spouse's attorney cannot give you any legal advice and is not watching out for your interests. Even fair-minded, ethical attorneys have a duty to protect their own client's best interests — not yours. If you have any questions or concerns about the proposed settlement, it may be worth hiring a local family law attorney to review your agreement and let you know if there are any red flags. And if your situation includes complex finances, custody issues, or an imbalance of information, money, or power, be sure to consult with a lawyer. Read our article on What If My Spouse Has A Divorce Lawyer And I Don't for more information.