Cincinnati Family Law & Divorce Blog: Can One Attorney Represent Both Spouses?
Many people ask the question of whether one attorney can represent both spouses, particularly when parties are seeking an amicable dissolution. However, the answer to this question is no. Due to a set of ethical rules all attorneys must follow in the practice of law, an attorney can only represent one spouse in a dissolution. However, two attorneys are not required in a divorce or dissolution and one spouse can be represented and the other spouse unrepresented. In this situation, the unrepresented spouse must sign a waiver of representation acknowledging that they understand they had a right to an attorney and they are not represented by their spouse’s attorney.
One reason attorneys are prohibited from representing both spouses in a divorce or dissolution is because even when the major terms are agreed upon, drafting the final documents required by the court can advantage one spouse over another. For example, if there is a retirement account that the parties agree to divide equally, the level of detail in the legal document can have an impact on how much the receiving spouse actually gets. The language may include whether market gains and losses will be included, what valuation date to use, and may even include issues with survivorship in the event that the participating spouse dies. An attorney cannot ethically advocate or advise two different people with opposing interests. Another example is if there is an agreed upon amount for spousal support, the language must detail whether and in what specific circumstances the court retains jurisdiction to modify the amount or duration of spousal support. Again, it would be a conflict of interest for an attorney to advise the spouses on both sides of this issue because there are opposing interests at play.
As is evident from the above examples, the details matter and one attorney cannot give legal advice to two people who have potentially opposing interests. For these reasons, it is advisable to obtain your own counsel in a divorce or dissolution so that you can ensure your questions are answered and your interests are protected.
There is an interesting twist to this issue and that is whether one party’s attorney can or should recommend an attorney to the other spouse. While it seems odd that someone would want to hire an attorney who was recommended by opposing counsel, there are reasons this is beneficial. When two attorneys have worked successfully with one another in the past, chances are good they will work successfully in this new matter. There is great benefit to both parties when their lawyers trust and respect one another. Usually this means your case can be resolved quicker and more amicably. It can be quite a disadvantage to both parties if their lawyers have a bad history or can’t work well together. The result is usually that the clients spend more in legal fees and have a less efficient process.
We encourage you to consider getting recommendations from your spouse’s attorney in dissolutions and then do you own due diligence in evaluating who to hire.