I am often asked by my client if I can represent both the husband and the wife in a divorce case. My client will usually indicate that they and their spouse have been talking about getting divorced. They seem to have a general idea of how they want to work it out, and they want to save the added expense of using two attorneys.
The answer is that to have one attorney represent both parties in a divorce creates an inherent conflict of interest. It creates a situation where, some time in the future, one side or the other might come back and say that the attorney did not fairly advocate and represent his or her interests, and they want the settlement to be set aside.
I inform my client that although I can only represent him or her, I can prepare all of the pleadings, the property settlement and the Judgment agreed to by the parties. We can then take the proofs at court, and the parties will be divorced. However, other party must sign a provision in the Judgment that “The husband (or wife) understands that Daniel H. Moss represents only the wife (or husband) in this case, not them, and the husband (or wife) has consulted their own attorney about the matters in this case. Further, Daniel H. Moss makes no representations to the husband (or wife) about whether or not any provision in this Judgment or settlement is in their best interest.”
The above process is similar to a “Collaborative Law” process, whereby both parties use the same lawyer and experts to resolve their issues without going to court. However, in “Collaborative Law” they all sign a contract which requires the attorney and experts to withdraw from the case if either party chooses to go to court. You lose the lawyer and expert whom you’ve come to know and trust, and you must start from scratch with new professionals.
Often, after being apprised of their support and property rights, most people who thought everything was agreeable with their spouse soon realize that things were not as they seemed. Husbands tend to get upset after learning that the value of half of their pension or business is going to go to their soon to be ex-wife. Wives are sometimes surprised that they may, indeed, be entitled to spousal support, or how much or how little child support they might receive.
I believe it is best to first consult your own lawyer, learn what your rights are and what you might reasonably expect in the divorce. This is particularly important where there are substantial assets and income. Once you are aware of your rights, you will then have a pretty good idea of how sincere your spouse is in trying to amicably work things out.
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