When a couple decides to divorce, the first step often involves both spouses retaining separate lawyers. But do both spouses need a divorce lawyer? In Pennsylvania, the Rules of Professional Conduct say that an attorney shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to that of another client. In the family law context, this means that an attorney cannot represent both a husband and a wife or a mother and father at the same time in a divorce, support, or custody matter. This rule applies to premarital agreements as well; an attorney cannot represent both parties in drafting a premarital agreement because their interests are ultimately adverse to each other; one gets rights that the other gives up.
Just because a divorcing couple hires lawyers does not mean that the divorce needs to be contentious. A divorce, support, or custody case may be quite amicable even though both parties have decided to retain attorneys because the attorney is there to keep their client informed about what his or her respective rights are and to facilitate settlement. A divorce, support, or custody case may also end up in “binding arbitration,” which is when the parties agree to take their case outside of the court system, before a neutral arbitrator (as opposed to a judge or master) who will make a final decision on their case. A binding arbitration is still an adversarial proceeding and both clients need to have their own attorneys.
This does not mean that both spouses need to have an attorney in adversarial proceedings, however. For example, a wife is free to retain her own attorney to handle her divorce, and husband is free to proceed self-represented, or pro se. Wife’s attorney is permitted to negotiate directly with the husband if he does not have an attorney, although the wife’s attorney must make clear to the husband that she is the wife’s attorney, that she does not represent him, and that he is free to retain his own attorney if he wishes. Likewise, both parties are free to proceed pro se. Ultimately, however, a divorcing couple will often be more happy with the outcome of their divorce if they clearly understand their legal rights and obligations, versus a situation where one party is represented and the other party is not. Additionally, there are many procedural rules to obtain a divorce in Pennsylvania, which must be followed very closely. If you are thinking about proceeding pro se, it makes sense to at least have an initial meeting with an attorney to understand the process.
Some couples may decide that they want to hire a divorce or custody mediator. This process begins with the parties selecting and agreeing on a mediator who will meet with them to help them achieve a settlement. It is highly recommended that each party still retain his or her own attorney during the mediation process because while an attorney will not actually participate in the mediation, they will help advise their client what to expect in the mediation session and whether the ultimate settlement is fair. Just as in an adversarial proceeding, couples are often more accepting of a divorce settlement or custody agreement when they are aware of what rights they are entitled to and what they are giving up.
Another reason to hire an attorney even if you are mediating your case is because mediators often do not draft the actual property settlement agreement, instead they prepare a “memorandum of understanding” outlining what the parties agreed to in the mediation sessions(s). The attorney for one party will draft the full agreement subject to the review of the other party’s attorney. Even if the mediator drafts the actual agreement, it is important to have the agreement reviewed by attorneys for both parties. Again, this attorney cannot be the same person, since even though the parties are in mediation, their interests are still adverse to each other.
Vetrano | Vetrano & Feinman Attorneys Offer Skilled Guidance During Divorce
At the end of the day, it is important to remember that while there are ways to minimize your involvement with attorneys during the divorce or custody process (mediation), it is never recommended to proceed without one entirely, since one wrong move can cause you to give up important financial or custodial rights that you are otherwise entitled to under the law. And, if you do hire an attorney, know that that attorney can only represent you, not both of you. Contact a Vetrano | Vetrano & Feinman family lawyer today to schedule a consultation.
