Ethically, a lawyer can only represent the interests of one client in a divorce. Even when husband and wife reach agreement on a settlement, they each have different interests.
Example: Wife wants to keep the house that has an equity value of $100,000.00. Husband wants to keep his retirement that has a value according to the retirement administrator of $100,000.00. They agree that each will keep the asset he/she wants and they will consider it an even division. Is it?
No. If wife sells the house, she will receive $100,000 in proceeds that will not be taxed, because there is federal tax law that forgives the first $250,000 that a person makes as profit on the sale of their residence. However, the money that Husband receives from his retirement will be taxed. Depending on the kind of retirement account it is, he may even be charged a 10% penalty when he withdraws the money. So he will actually receive $100,000 less the taxes due and potential penalty on the pay-out from this asset.
If the couple were allowed to employ one attorney, that attorney would have to decide whether to point out this inequity. Will that cause the breakdown of the agreement? Will Wife feel betrayed because it looks to her like the attorney is watching out more for Husband's interest? If the attorney remains silent and Husband withdraws some of all of his retirement funds, he will realize that he is going to be charged the taxes and penalty and will feel betrayed by the attorney's failure to disclose.
If this couple approaches one attorney to finish up their divorce that attorney cannot represent both of their interests. It is in Wife's best interests to have the attorney stay quiet about the inequity in the settlement. it is in Husband's best interests to have the attorney point out the shortfall he will receive.
What can the couple do to get their settlement drafted and have their divorce completed? They can agree that one of them will hire the attorney to draft the agreement and file the documentation in the court. The other should take the agreement and the divorce documents to another attorney and have the documents reviewed. Some attorneys will agree to work under a limited scope contract. In other words, they will only provide discrete services, such as review the settlement agreement, the complaint, draft an answer and review a judgment of divorce and provide opinions regarding these documents. They will not go to court to represent the party, unless the party specifically requests that service.
If both parties employ lawyers who have been trained as mediators and collaborative professionals, the lawyers should be able to assist them in providing complete information about the consequences of their agreement without having the case dissolve into a battle. They can help them negotiate the terms of their agreement with civility and allow each to receive a fair share.
Many couples wish to maintain civil relationships with their former spouses after the divorce is over. It is essential that each party feels that he/she was treated fairly in the settlement process to have a lasting agreement and civil relationship. While it may cost more to have the services of two attorneys, you are investing in the documents that will govern the rest of your family and financial lives. It is worth making sure that you have complete information to reach a sustainable agreement and post judgment