If you and your spouse agree on financial and custody issues in your divorce, you may be thinking you could save money by using the same attorney to represent both of you. You have heard that divorce is expensive and time-consuming, but your situation is amicable. Why not keep attorney’s fees low by hiring one attorney?
Attorney Ethics Rules
You cannot use the same attorney because of the ethical rules governing conflicts of interest. Lawyers cannot represent both parties in a divorce because of the inherently adverse interests of the parties. While you may think that you have agreed on every issue, you also have rights and obligations under New York law that you may not know about. If your attorney were representing both of you, telling you what is best for you may be against the interests of your spouse, causing a conflict.
Options for Hiring an Attorney in an Amicable Divorce
If you and your spouse negotiate the terms of your divorce on your own, you can hire an attorney just to draft your agreement. In this situation, your attorney cannot give either of you any legal advice, however.
Alternatively, one of you can hire an attorney to negotiate and draft the agreement while the other one represents himself or herself. However, the attorney will only advise his or her direct client and negotiate an agreement that benefits that client alone. The other spouse therefore doesn’t get the benefit of legal counsel which is of concern to courts should the agreement become litigated.
Both approaches will save some time and money because you negotiated all or most of the terms on your own, instead of paying a lawyer to do it. However, in the first option, you should both still get independent legal advice before signing. In the second option, the party without an attorney should hire one to review the settlement agreement.
Why You Want Your Own Attorney
Hiring your own attorney protects you. He or she can explain your rights and the implications of the terms that you agreed to with your spouse to ensure you understand what you are signing. You can confidentially share your concerns with your lawyer who will also advise you whether the agreement meets your needs and goals as well as addresses your concerns. If another attorney drafted the agreement, your attorney will also verify that it is complete with no missing terms, clearly drafted, fair and complies with the law.
Your spouse should also have an attorney. This benefits him or her and also helps ensure your agreement is legally enforceable. If you or your spouse tried to challenge the agreement later, the judge would look at whether the challenging party had the opportunity to speak with an attorney and ask questions. This would be evidence that the party knew what he or she was signing and there was no duress, coercion or other factors making the agreement invalid.
Divorce and family law is complicated and can be difficult to understand. Both of you have rights to assets and income, spousal and child support as well as child custody and parenting time. While there are statutory guidelines to help determine what you get, how they apply in a particular case isn’t obvious. That’s why you want an experienced attorney looking out for your interests.
Hiring the same attorney as your spouse won’t work. Neither will representing yourself without an attorney. What does work is negotiating with your spouse, so you avoid litigation.
If you are considering divorce and looking for an efficient, cost-conscious attorney, contact us for a consultation to learn how we can help.
