There's an exception to the rule that one lawyer may not work for both divorcing spouses. Joint representation is allowed when:
• the clients agree on the major issues
• the clients are confident they can work out the minor issues
• the clients understand that the lawyer cannot fully represent both under the circumstances
• the clients have agreed to this in writing, and
• the clients just want the lawyer to do the paperwork.
If a disagreement does arise, the lawyer ethically has to transfer at least one client to another lawyer. The lawyer may have to transfer both clients to other lawyers if the lawyer has learned some things about the couple that make it unfair for that lawyer to continue to represent one of them.
How to Keep Lawyers Civil
If you and your spouse do hire lawyers, you can stop your lawyer from engaging in lengthy, expensive arguments with your spouse's attorney. Explain that you believe a combative approach does not suit your or your children's needs. Most lawyers would rather have a satisfied client than feed their ego by fighting the other side's attorney.
How Collaborative Law Works
Some family lawyers are trying a new method called "collaborative law," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.
When to Hire a Lawyer
It makes a lot of sense to hire a lawyer if there is a real problem with abuse -- spousal, child, sexual, or substance. In that situation, a lawyer can help you get the arrangement you need to protect yourself and your children.
It can also make sense to hire a lawyer if your spouse is being dishonest or vindictive and you just can't cope with it. In that case, you may need someone to protect your interests.
It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned professional.
If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will, at a minimum, discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings while you represent yourself. Ask whether the legal aid office has a pro bono program. The office may have a list of private attorneys that are willing to take on cases referred by legal aid, at little or no cost.
If You Fear Violence
If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep the spouse away. It's very important that you also get a temporary order for custody of your children, so that you are not accused of kidnapping.
If you need money, you have the right to use your joint accounts. Take the amount of money you realistically need plus some extra for emergencies (but try not to take more than half of what's there unless you absolutely have to), and immediately file an action in court for support.
How Divorce Mediation Can Help
Mediators help you and your spouse get over the emotional barriers to negotiation and fashion a sensible divorce agreement that meets both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests the way a lawyer does. Instead, mediators facilitate a negotiation between the spouses, that in most cases results in an agreement satisfactory to both sides.