Why Not One Divorce Lawyer for the Two of Us?

By Stacey H. Langenbahn, J.D.

Attorney-Mediator

Often divorcing couples who believe they have worked out a deal between them want to use one lawyer to answer legal questions, draw up the paperwork, and finalize the divorce at the courthouse. Many are afraid that if each of them has a lawyer, the two lawyers will stir up unnecessary conflict or they will be too expensive. So can a couple have just one divorce lawyer for the two of them? No. Here is why not and what they can do about it.

Divorce Lawyer's Conflict of Interest

Even if spouses agree on everything in the divorce and it is “uncontested”, when one of them files for divorce the spouses are legally considered to be opposing parties in a lawsuit. For that reason, it is a violation of ethics and a conflict of interest for one lawyer to represent both of the spouses or parents in a divorce or custody case no matter how amicable. There are a couple of options for couples who want to limit the role of lawyers: use a single neutral attorney-mediator to help both spouses in mediation; or one can hire a divorce lawyer (while the other has none).

Option 1: Both Spouses Do Divorce Mediation with a Neutral Attorney-Mediator

A popular option for both spouses to get legal assistance from a divorce lawyer is mediation. In divorce mediation, an attorney-mediator can ethically assist both parties because the mediator acts as a "neutral". The attorney-mediator gives each spouse legal information and may even do legal analysis, but the mediator draws the line at offering legal advice. That means the attorney-mediator educates both spouses about the law and rights that apply in the divorce, without taking sides.

The attorney-mediator's job is to help the spouses identify issues, gather information about property and debts, develop options for settlement, and communicate and negotiate resolutions that work for both of them and their family. Because mediation is confidential, neither of them can require the attorney-mediator to testify in court about what went on in the mediation except under very limited circumstances. If a spouse has a question about a specific legal action, that is when he or she may want to consult an outside attorney.

When divorce mediation is done early, the cost is much lower than divorce litigation. Mediators whose clients are unrepresented will recommend they have attorneys review their agreements before signing a legally binding settlement document, but it is always up to the spouse to choose whether he or she feels the need to have an attorney do that. Early mediation can also be effective when each spouse has a divorce lawyer, but the overall cost and level of conflict are generally higher (especially if the mediation takes places right before trial instead of at the very beginning of the divorce).

How do spouses get the necessary court paperwork and qualified domestic relations orders ("QDRO") drafted, signed, and processed at the courthouse? In Texas, an attorney-mediator can write a legally binding mediated settlement agreement ("MSA") that contains all the terms of divorce the parties agreed to in mediation. At the option of the parties, the attorney-mediator can explain what the forms mean and what information they are asking for, and guide them through how to insert their mediated agreements into the form themselves to write their own decree or to incorporate the MSA by reference if they do not want to incur the cost of hiring attorneys to "paper" their divorce. Fortunately, Texas has very useful free divorce and family law forms available online for those who do not have divorce lawyers or do not want them.

The mediator can refer the parties to a neutral attorney who specializes in explaining the decisions to be made in dividing their particular retirement assets and writing any needed QDRO that the judge must sign. Parties who hire a neutral QDRO lawyer directly during mediation will usually save money. Many divorce lawyers tell a client they will draft a QDRO, but what they frequently do is outsource it to the same QDRO lawyer the spouse could have hired directly during mediation, and then upcharge to supervise the task. In addition, the mediator can refer the spouses to a neutral lawyer who will assist them to draft and process any real estate papers needed to change and record title to property on divorce.

So, although a neutral mediator in Texas is not permitted under Texas lawyer's ethics rules to "represent" a party to draft, sign, or carry to the court house the couple's paperwork, the mediator can guide them to the proper resources to do this cost effectively themselves.

Sometimes mediated agreements are highly customized, complex, or in significant variance of the law. In these cases, the free forms usually are not adequate, and it may be necessary and worthwhile for a couple to spend the money to have lawyers do the drafting and to assist each spouse process the agreed divorce at the court house. Nevertheless, couples still save money and time if they mediate early because they work closely together with the mediator to reach acceptable agreements first, and then hire and pay lawyers only for what the couple needs. A lawyer's job at that point would be to review the mediated agreement to make sure decisions were well-informed;  to make any final agreed revisions; to draft (or review the draft of) a divorce decree that incorporates those agreements; and to get the judge's signature on the decree.

Option 2:  One Spouse Hires a Divorce Lawyer

Another option when the spouses already have reached all their agreements is for one spouse to hire a lawyer while the other has none. This may work if the spouses already went through early mediation and have no children, little or no property, and no joint debt or when both spouses agree on everything and they want a lawyer to draw up paperwork because they do not want to do it themselves.

A lawyer who represents one client in an uncontested divorce or a simple divorce that has been through mediation, usually charges a flat fee (a set amount of money) for minimal legal services. Those may include a meeting between the client and a paralegal to gather basic information and to draft a standard petition and decree that includes their agreements; a limited number of phone calls; a meeting with the lawyer to go over the final draft of the decree; and processing the decree and other papers at the courthouse.

When couples agree they will only hire one lawyer, they must fully understand that the attorney-client privilege, and the lawyer’s duty to diligently represent the client’s best interests and provide legal advice go only to the spouse who actually signs the representation contract with the lawyer. That spouse gets all the benefits of the knowledge, experience, and guidance of the lawyer. The other gets nothing and is left to represent himself or herself and to figure out what he or she must do procedurally and strategically.

When deciding whether to take a one lawyer route, it is important to keep in mind that a lawyer who represents one spouse may not be willing to negotiate directly with the other if any of the agreements falls apart.  The lawyer does not want to risk malpractice by giving the appearance to the client or the unrepresented spouse that he or she is siding with, assisting, or giving legal advice to the unrepresented spouse.  In a mediated divorce, the attorney may go through the mediator to convey information and offers to the unrepresented spouse. If there was no mediation and the attorney is charging only a flat fee, the lawyer may require the spouses to work out every detail of every issue by themselves.  If there are any disagreements and there is no mediator to intervene, the lawyer is very likely to convert the divorce from "uncontested” to “contested” and switch from doing the divorce on a flat fee to billing for legal services on an hourly basis.  That means both spouses would be thrown into litigation.

One lawyer for one spouse might not be a problem for the unrepresented spouse in a very simple divorce where there is little or no property to divide, no joint debt, no kids, and both agree on all terms. The unrepresented spouse in such a case might turn to online resources for instructions and use free legal forms to properly follow legal procedure on his or her side. Under these circumstances, one lawyer working for one spouse can be successful and very cost effective for both spouses.

For those who try to do a one-lawyer approach in a more complicated divorce requiring division of retirement assets and jointly owned properties or businesses, splitting of joint debt, and/or crafting a non-standard parenting plan or custody arrangement, the spouse that is unrepresented quickly discovers he or she is at a distinct disadvantage. The lawyer representing the spouse has to act in the best interests of his or her client, and the lawyer will advise that spouse how to get the most for himself or herself.  Disagreement is highly likely to arise, and when it happens, the other spouse invariably must get a lawyer too.  If the lawyers cannot work out a deal, the judge will order mediation.  If there are still no agreements, spouses will be heading into very costly, time consuming, and stressful trials and appeals.  Of course, the couple might avoid that whole situation if they were to choose early mediation from the beginning, and decide after they have agreement whether to do the court paperwork themselves or hire lawyers.

So whether spouses agree to hire one lawyer to represent one of them in an uncontested divorce or to use an attorney-mediator to assist each of them together, affordable legal assistance is available when spouses do not want or cannot afford two divorce lawyers.