I am often asked in divorce consultations if an attorney is really needed if the parties believe that their divorce case or legal separation case will be uncontested. Generally, it is advantageous to both parties to have an attorney involved even in uncontested cases. Furthermore, many cases that initially appear to be uncontested still require extensive negotiations on the specific agreement detail, and in a small percentage of cases, the parties are unable to maintain the agreement as one or both parties back out for an assortment of reasons.
Because of ethics issues and the conflict of interest, one attorney cannot represent both husband and wife in a case, even if it is uncontested. However, having at least one attorney involved from the beginning of the case, representing either party, provides the benefit to both parties of having the appropriate legal requirements in the pleadings filed with the court to commence the case.
Generally, uncontested divorces are resolved by having both parties and any attorneys involved sign settlement documents. These settlement documents would include a Consent Decree in all cases, and in certain cases would include a Stipulated Parenting Plan and/or a Property Settlement Agreement. Having an attorney involved in the drafting of these settlement documents ensures that the documents are properly prepared, contain the necessary legal requirements, and facilitates placing the agreement of the parties into the proper legal wording. Furthermore, experienced divorce attorneys have the benefit of hundreds of prior divorces and understand various issues that are likely to go wrong. With this knowledge, the settlement documents can be prepared in such a way to address various contingencies and potential future problems, thus avoiding future litigation between the parties.
Finally, an attorney involved in your divorce case will provide you with the knowledge of maneuvering through the court system, and can often facilitate an uncontested divorce without either party being required to appear in court at any time.
If your spouse has hired an attorney, and that attorney is preparing the pleadings and settlement documents, that attorney should inform you that he cannot represent you because he/she represents your spouse. That attorney should inform you that you have the right to hire your own attorney, and that you may take any documents to your own attorney for review prior to signing any settlement documents. Because experienced divorce attorneys have advanced legal training, years of experience, hundreds of divorce and family law cases behind them, it would be wise to hire your own attorney to represent you in the case. At a minimum you should have your own attorney review any settlement documents with you prior to signing them. Your attorney can point out potential pitfalls, discuss with you likely outcomes if your case were to proceed to trial, ensure that you understand your legal rights, and discuss with you how close the agreed upon provisions approximate what a court would likely decide if your case went to trial. Having this knowledge provides you with the assurances that the settlement documents are fair and equitable and in your children’s best interest before you sign them, or provides you an out if these settlement documents are not as fair and equitable as you previously believed.
If you are faced with a divorce, legal separation, or custody case, please call me today for a free initial telephone consultation to discuss how hiring an attorney will benefit you in your family law case.
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