A common misconception in New Jersey is that both spouses can use the same attorney for their divorce. My local paper recently had an article about divorces in the current economy. One attorney was quoted as intimating that this was true; the attorney was speaking of uncontested divorces in which the parties agree on issues and the seek the dissolution of their marriage. While I am certain that the attorney’s comments were taken out of context, as one of the points in the article was a concern about legal fees, this is a question that comes to me often. A client will ask me if I can represent both spouses, even if they have an agreement. The answer is a resounding, no.
The ethics rules in our state are very clear that one attorney cannot represent both spouses in a divorce. Simply, it is a conflict of interest. The New Jersey Supreme Court has said on many occasions, that “one of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests."( In re Opinion No. 653 of the Advisory Comm. on Prof’l Ethics, 132 N.J. 124, 129 (1993)). Our state has a very strong policy in which there should not be even an “appearance” of a possible conflict of interest. This is to protect the clients.
Imagine a scenario in which one spouse has been home raising children, and the other has been working throughout a twenty year marriage. This is a situation in which alimony will be an issue. Certainly, the non working spouse and the working spouse may have differing positions about the amount and term of alimony. Most people agree that in these circumstances, the parties will want to have their own attorneys. But what about the situations where both parties are working, and they have a house and a couple of retirement accounts. Many people believe that in this situation, they do not need two attorneys and both use the same lawyer. Well, they can’t.
There are many times in what is deemed to be a “simple divorce” that a conflict of interest could arise. This does not mean that one party is trying to “get one over” on the other; it could be a situation in which the parties reach an agreement and simply do not understand all of the applicable issues. Take this example ( which happened to me several years back): husband and wife agree that she is going to take the house which has $100,000 in equity. Husband will take the investment account which has a value of about $100,000. 50-50 split, right? This is what they want to do. Well, it’s maybe not quite so fair, because in my example, it turns out that the investment account contains stocks that they received twenty years ago for a wedding present and there will be significant tax consequences such that husband will really only get $70,000 in after tax dollars. Take the example of a pension. Usually the parties divide the interest which was accrued during the marriage. But what about the beneficiary designation? That designation could have significant consequences on a spouse who remarries later on.
These is just two of thousands of examples of why each party should get independent advice in a divorce. Most cases settle and an agreement is drawn up. But the essence of a settlement is compromise, which means that each side will give up something that they are otherwise entitled to in order to reach a settlement that they are satisfied with. How can the same lawyer advise the clients what to give up without creating a conflict? It cannot be done, which is why one attorney cannot represent both spouses in a divorce.
That being said, there are many, many times that I am retained to review an agreement that has been prepared by another lawyer, or a mediator. And in some of those occasions, I may not recommend any changes. But at least each person has had the opportunity to make sure that their rights are protected. Sometimes, a client will come in and say that she(or he) and the spouse have worked out an agreement between themselves and only want to use one attorney. I advise my client of all the implications of the agreement. I then prepare an agreement with the terms (as they may have been modified after I have given the client my opinion), and send it to the other spouse with a stern letter advising that spouse to have an attorney review the agreement before signing it. If that spouse waives his or her rights, and does not seek to see a lawyer for advice, I note that fact in the agreement. This is to protect my client against a potential challenge to the agreement at a later date on the basis of that other spouse not having legal advice. Then, once the agreement is signed, the matter proceeds on a “uncontested basis.”
The fact of the matter is that the vast majority of lawyers understand that their clients are conscious about the fees that they spend for a divorce and make every effort to work efficiently while at the same time making sure that the client is educated about his or her rights and protected.