Conflict of Interest in Uncontested Divorces
When someone comes in for an uncontested divorce, many times that person assumes that the attorney can see and advise their spouse as well. It is a common, but mistaken belief that when there is an uncontested divorce the parties need only one lawyer.
Part of the problem comes from confusing a mediator with a lawyer. While a mediator can be a lawyer, when acting as a mediator however, that person is not acting as a lawyer.
Let me explain. A lawyer is an advocate who advises and represents the interests of his client. A mediator is a person who stands in the middle, seeking to get two parties to agree. The mediator does not advise on the law or represents one party’s interests ahead of the other.
The law doesn’t merely require but mandates that an attorney can only represent one party in a dispute. Violating such a rule can and does invalidate the entire agreement.
The reason for the rule is that a lawyer cannot properly represent two people with conflicting interests. Only when each party has a lawyer can that spouse’s rights be properly protected.
For example, if the parties are disputing the division of property, a mediator might make suggestions about how the distribution should work. The lawyer explains to his/her client, the law and how to maximize their share of the property.
When one party engages a lawyer, and the other party reasonably believes that the attorney represents both, the agreement is flawed and will be thrown out.
In a recent case, this happened. The parties executed a separation agreement in 2000, but continued to live together until the marriage finally broke down in 2015. They went to a mediator and after a ten minute consultation agreed to proceed with an uncontested divorce. The mediator would now represent the wife in the divorce, and both waived any conflict of interest. A new agreement was drafted, signed and notarized.
The husband later, and successfully, attacked the agreement. He claimed that he thought that the attorney was representing both of them. He claimed that he was not advised as to his right of counsel. And more importantly, he was not informed that the 2000 agreement was still valid until the 2015 agreement superseded it. Further, the new agreement was far more favorable to the wife than the 2000 agreement.
Had the husband had his own lawyer, he would have been advised that the 2000 agreement was valid, and that he could have negotiated a new deal, a refinement on the old deal, or held to his position and enforced the original agreement. The lawyer by first acting as a mediator muddied the waters and misled the husband into thinking that the attorney represented both of them.
Whenever an attorney meets with the other spouse there is always a danger of that spouse claiming that he thought that the lawyer was representing both parties. That’s why the better practice is never to meet with or talk to the other spouse. All communications should be handled by email or letter. In each correspondence it should be stated that the lawyer does not represent that spouse, and that he/she should confer with a lawyer. When the final agreement is done, the attorney shouldn’t even notarize it. Construct a complete wall.
The important take away is that in a divorce, either each party gets their own lawyer, or the party without a lawyer must understand that his spouse’s lawyer does not represent him.