No. While a lawyer can draw up an agreement if both sides have agreed upon all matters, even in this case of limited representation, a lawyer can only represent one side. As a practical matter, because there are usually unresolved matters which the parties do not recognize, our practice and policy is that we never meet with both parties to discuss a potential resolution.
We regularly receive calls from people going through a divorce in Indiana saying that both they and their soon-to-be ex-spouse have reached an agreement concerning their divorce, and wanting to meet with an attorney to draft it up. The question that we are often asked is “can a lawyer represent both spouses in a divorce in Indiana?
Our firm encourages clients to try to work things out on their own. It is ultimately cheaper and better for the parties’ relationship. However, the following are three reasons that we do not accept this type of representation.
There are a few lawyers who will meet with both parties because they believe it is a divorce where there are no contested issues. Unfortunately, the lawyer will not be able to actually know if it is really uncontested until the lawyer has discussed all the potential issues with both parties and confirmed that the parties actually have an agreement on all issues. That is almost never the case.
For example, one party may believe that a certain amount of child support is reasonable and is willing to accept a certain parenting time plan if the support is based on the number. Indiana law generally requires the parties to execute a child support worksheet which may reveal a child support number which is very different from what one party felt was reasonable. That change in child support may cause one of the parties to revisit child support as well as parenting time.
Frequently, clients do not appreciate the difference between mediation and attorney representation. A mediator can meet with two parties and help them negotiate, but a mediator cannot provide legal advice to either party. Under Indiana law, a mediator is also prohibited from preparing certain documents which ordinarily would be necessary to complete the divorce.
Attorney representation, on the other hand, is where a party is actively seeking legal advice and recommendations, rather than simply helping the parties reach their own agreement.
A lawyer cannot represent clients whose interests are at odds absent extraordinary circumstances. A lawyer who meets with two different parties with different interests will almost certainly not be able to represent one party to the detriment of the other party if ultimately the case will be contested.
The lawyer also potentially makes himself a witness to any discussions involving the parties which would also make further representation of either party very unlikely. There may be cases where one party is clearly dominating the other party – financially, emotionally, or physically. An attorney would be a very difficult position if he knew that one party was actively taking advantage of another in the negotiation because of some form of coercion, yet would be unable to help the party who is being dominated.
In some cases, for tax reasons it is better for one person to transfer certain assets to the other party, but the transfer may result in a tax liability for the receiving party. That transfer is obviously good for the transferring party, but not for the receiving party. The receiving party may want to receive other assets which don’t have the tax consequences.
In certain cases, one party may want to delay the divorce for personal reasons, such as the ability to be on the other party’s health insurance, but the other party wants to be divorced immediately. There is no easy way to reconcile these competing interests in a way that does not inherently affect one party in a negative way.
There are also certain documents (such as documents to transfer retirement accounts) that we may draft a particular way if we are representing one client to ensure that they receive certain benefits, but would not include those benefits if we represent the other party.
We strongly encourage parties to schedule a separate consultation with a family law attorney prior to or as part of any negotiation.
That consultation would cover how the law works, how the process works, and how the attorney could facilitate discussions if desired.
If you and your spouse have actually worked out all matters, then legal fees will be much more limited than if this is not the case. However, because of wide range of significant issues that are involved in a divorce, it is critical to seek the advice of a lawyer who will be looking out solely for your interests, and who can advise you of matters that you may not have considered.
In some cases, clients do not retain us to represent them throughout the entire process. They retain us to review settlement documents or simply schedule consultations to discuss specific issues. That is what we call limited representation. If the parties reach an agreement that truly covers all the issues, then one attorney can prepare a full agreement that covers all issues, but that attorney is representing only one party and would clearly state that in the documents. The other party within have the right to have counsel of their choosing review the agreement or proceed without representation.