Clients often ask, “Can my spouse and I just use the same attorney to save money on our divorce?”
Well, there’s good news and bad news – but the bad is really more good, in disguise.
The good news is that there is no requirement for anyone to use an attorney when they get a divorce. Does that mean that not using an attorney is wise? No.
A professor I had at Baylor Law School used to say, “I don’t cut my own hair – it may look like it, but I don’t.” That was him telling us to hire someone for a job that knows what they are doing.
A judge in the Dallas-Fort Worth area used to say, “Trying to be your own lawyer is like trying to do surgery on yourself. You’ll get halfway through it, it will be a mess, and you will wish that you never started.”
Does that mean no one can ever adequately represent themselves? No. I had a client years ago who did what appeared to be a good job representing himself in his divorce – of course, what seemed to be a good job in the divorce later led to about four Modification of Custody cases that I handled for him.
The Rules
So, back to where we were – here are the FIVE hard and fast rules to know:
1. Nobody has to have a lawyer.
2. If one spouse has an attorney, it does not mean the other has to.
3. The same attorney cannot represent both parties.
4. Either or both sides can hire an attorney to represent them through “limited representation” – which is sometimes referred to as “unbundled services.”
5. A lawyer (or non-lawyer) claiming that these rules do not apply to them because they will just “act as a mediator” is either an idiot, unethical, or both.
The Explanation of the Rules
To take these Five Rules apart a little bit:
1. Nobody must have a lawyer in a divorce – or any other kind of family law case. If you want to “cut your own hair” or “perform your own legal ‘surgery’,” have at it. You may do a great job, or you may cause yourself problems that cost a fortune to remedy – and some problems can’t be remedied.
2. Just because your spouse has an attorney does not mean that you have to have one. In a great many divorces, there is only one attorney involved – but that is NOT the same thing as the attorney representing both spouses. Important: Keep reading
3. The same attorney cannot represent both parties. Let me say that again: The same lawyer cannot represent both spouses. Again: The same lawyer cannot represent both sides in the same case. No, no, no, no. Are there attorneys that only represent one spouse but don’t make it REALLY clear to the other side that they do not represent them, too? I don’t know, maybe. However, the Rules of Ethics that Texas lawyers are required to abide by make it clear that it is strictly forbidden for an attorney to represent both sides.
So, what is representation? At a minimum, giving any advice at all is representation. And telling someone what they “should do,” other than seek legal advice if they don’t know what to do, is arguably giving legal advice.
4. Sometimes, what happens is that one side hires an attorney, and the two spouses work out a “kitchen table divorce,” meaning that they sit down – figuratively or literally – and decide how they want to divide things up and what arrangements they wish to have with their children, if any. Then, the spouse with the attorney gets that attorney to “write things up,” and the un-represented spouse hires a different attorney to review the paperwork and determine whether it will do what the spouse says that they want done. Some attorneys will let themselves be hired for this type of limited representation – essentially a “document review,” and some won’t.
5. Mediation is a great tool to settle cases that can’t or don’t settle through Negotiation. It is a form of Alternative Dispute Resolution. And Mediators can be worth their weight in gold. Or they can be nightmares.
One particular kind of Mediator-Nightmare can be found in those circumstances where a Mediator, either through ignorance or a lack of ethics, advises both sides of a case. If the Mediator is not an attorney, advising either side regarding the law and what they should do is practicing law without a license – which you can do to yourself, but not to anyone else. So the mediator cannot do it to you or your spouse. If the Mediator advises both sides and is a lawyer, they are committing an ethics violation.
Conclusion Divorce is, for the most part, a “zero-sum game.” Everything you get, the other side does not get – and vice versa. If you don’t want to take your chances representing yourself, then you need representation from an attorney who has a sworn obligation to only look out for your best interests. An attorney owes their client a Duty of Loyalty. The attorney cannot be loyal to one party – and advise them on what is in their best interest – if they also advise the other side.
In the motorcycle world, it is often jokingly said, “If you’ve got a $10.00 head, get a $ 10.00 helmet.” The point is, of course, it’s worth spending some money on something that is valuable and that matters.
While it is tempting in divorce to think, “This is agreed, so it’s not worth spending much money to be sure it’s done correctly,” or “We don’t have much, so it’s not worth spending very much to get good legal advice,” the problem is that many many people undervalue the kinds of issues that they can cause themselves, both in the near and distant future or even cause their heirs, by not getting the divorce handled correctly on the front end.
There is saving money on the front end and saving money on the back end. Saving a few thousand dollars on the front end of a legal problem and then causing yourself tens of thousands of dollars on the back end is not a financially wise decision.
"Get the best legal advice that you can afford" is often the best legal advice that you can get when trying to solve a legal problem like a divorce, custody, or other family law issue.
But you may still be asking, “Wouldn’t it save money if we could just use the same lawyer?”
In reality, the number of attorneys involved is not the main determining factor in what a case costs – it depends more on who and what the attorneys are. A lawyer can be a problem-solver or a problem-causer. You want to hire a problem-solver.
I’ve seen “one attorney” (not representing both sides, because again, that’s unethical as a matter of law) cases end up costing tens of thousands or more, ultimately, and I’ve seen “two lawyer” cases cost a few thousand.
For more on the determining factors in cost and cost-savings techniques, please see these links: