Though the legal and ethical parts of doing this quickly go over my head, as it turns out The Sopranos Rule is a real thing that people actually do.
In the show, main character Tony Soprano seeks consultation with a number of the best divorce attorneys in North Jersey for the express purpose of preventing them from being able to represent his wife Carmela.
Looking around a bit more, while it’s something that people actually do it seems that most people don’t have the means to create a relationship with so many law firms as to actually prevent their soon-to-be ex from finding one.
I knew a woman who wanted to divorce her husband, who was a lawyer. Each time she spoke with an attorney, once they found out who her husband was, they would apologize that they were too busy to take her business.
Many lawyers do a free initial consultation. Family law attorneys typically do not. They get screwed too when someone consults with all of the lawyers in town and only one gets the business.
I guess this is one of those things were a legal definition is different than the layman definition (like “insane”).
It’s lawyers that fight to keep an unethical law like that in place.
Back in the 1970’s a young lawyer in California got his first job at a family law practice. He just couldn’t deal with the way people with easy divorces were getting screwed. So he wrote a book with step by step instructions on how to do it yourself. The California bar sued to have the book blocked because then people would be “practicing law without a license”. In actuality they saw all of that money going out the window if people had agency.
As luck would have it, there was a book about how to do your own taxes that was similarly blocked by some CPA organization on similar reasoning. It was well along the path and the tax book person prevailed. This precedent allowed the divorce book to proceed.
Would a single lawyer have any obligation to do any digging to make sure the split was fair? For instance, if the couple agrees that each one gets to keep their 401k, does the lawyer have any obligation to look at the accounts to see if they were roughly equal? And the same with the asset split as a whole. If the couple comes in and has a plan to divide the assets, does the lawyer just rubber stamp it or would they have an obligation to ensure it was a fair split?
Those are all excellent questions, and I don’t know the answer.
In some jurisdictions there are what is called “limited retainers”, where a lawyer is retained to do only certain tasks. That might apply to that example, depending on the law governing the lawyer in that jurisdiction. But even then, if the lawyer finds that the proposed split doesn’t take into account the legal rights of one of the parties, there may well be an obligation to bring it to their attention.
A lawyer who becomes aware of one of those issues, and doesn’t raise it, is potentially at personal risk for a malpractice suit in the future.
And the standard disclaimer: When in doubt, get legal advice from a lawyer in your jurisdiction; don’t rely on what you read on internet message boards.
That’s what you go to a lawyer for! Our job isn’t just to draft documents in a special legalese. Our job is to give legal advice, and then to take instructions from the client on what they want to do, and then draft the documents to carry out those instructions.
I was poking around earlier today on the issue of when couples are likely to divorce. One article pointed out that yes, there can be a high rate of divorce in the first year, and then mentioned that in some states, prenups don’t become final until the marriage has lasted at least one year.
If the couple comes to the lawyer and says: “We got married 10 months ago, but it’s just not working, so please do the paperwork to file for divorce,” and the lawyer asks if they have a prenup, that one year clause might well be a conflict.
If the lawyer is just acting for the party that has more assets that are not yet subject to the prenup, the lawyer would likely advise that party to get the documents filed pronto.
And if the lawyer is just acting for the party that has less assets, the best legal advice might be to wait until month 13 before agreeing to file anything.
But if the lawyer is jointly retained, the lawyer has to alert both of them to the issue, but can’t give a recommendation, because the lawyer can’t give advice to one party to the joint retainer that could prejudice the other party to the joint retainer, so the lawyer is likely conflicted off, whether they want it or not.
Again, this is just for discussion purposes, to show the pitfalls of acting for both parties in a situation where they may have hidden conflicting issues.
My sister signed a separation agreement drawn up by their son. It did not go well. She got the house, but only by agreeing to forgo any inheritance. Then the son drew up a will for his father that had him getting 40%, his sister 30% and the whore (my sister’s word) 30%. Now she doesn’t think she was well served and has not talked to her son since. But she does own the house. Trouble is they lived there for over 50 years and did 0 maintenance and now the piper has come to call and she doesn’t have the money.
If one or both want to fight and punish the other then both need lawyers. The only ones that will win are the lawyers.
My state is a no fault state. Too many people seem to want to prove in court the other person was bad. It’s meaningless but the lawyer can pay for his beach house.
Everything is a formula. She makes this much, he makes that much, they were married x years, out pops the alimony amount. Same with child support. There really shouldn’t be any questions unless someone is doing something illegal.
We had a neutral mediator. That’s all she does. She plugged in the numbers. She covered the usual issues with custody and visitation. All pretty standard. When we were done the wife of a friend wrote it up for us. Not for free but pretty reasonable. A couple years later when we agreed for me to get primary custody the lawyer friend recalculated and filed the change with the court.
The ex typically doesn’t get part of the inheritance after a divorce. Sometimes it happens, but it usually seems to be because one person didn’t update their will after the divorce and still had their ex-spouse listed. The default case is that the ex doesn’t get anything.
Are they still married? Have they split up all the assets? If this is just an official separation but they are still legally married, she may still be entitled to the joint assets. For instance, if there’s an account with both of their names on it, she would get the account if he were to die. Joint accounts wouldn’t be part of the estate. If they are still married, the asset percentages listed in the will would just be for assets which were only his assets. But if the car or stuff like that is in both of their names, she would typically get those joint assets.
My ex and I used the same lawyer for our divorce. But the attorney was called a mediator. I don’t know if calling him a “mediator” was some legal requirement (Massachusetts) but he was an attorney and did all the legal stuff, in addition to meeting with us together and working out the details. It went very well.
They were just separated, but she had agreed not to inherit when he died. But he agreed she would get the house. When he died, she did get his car (which apparently was considered joint property) and the house. And his assets were divided 40,30,30 as I described.
I checked and in Washington State (where I live) it’s not legal for both sides in a divorce to have the same lawyer. (Though they can both hire a lawyer to serve as a mediator, it’s not the same thing because that’s a neutral third party not representing either side.)
I suppose thinking back, we didn’t have the same lawyer. My ex-wife had a lawyer but everything was routine and we had no disputes, so her lawyer made sure all of the Is were dotted and Ts crossed.
I could have hired my own, but I’d have paid out of my own pocket and I didn’t have much money to begin with. My ex didn’t have that concern because her mom was paying for it.
While I’m not a lawyer, I’m not a dummy, and when I got the paperwork I basically just looked up what reasonable terms were for things like spousal support, child support, and so on. Everything in the paperwork seemed like what I was seeing was pretty routine, so I signed it.
Maybe it wasn’t wise but again, I didn’t have much money and it all worked out just fine in the end. I knew my ex-wife wasn’t out to get me or anything. We didn’t hate each other, we just couldn’t be together anymore, and she was (and is) a good person. I’m glad that our divorce went the way it did.
Not quite. You’ve been saying that two parties can hire a lawyer to act as a lawyer for both parties, and how bar rules that prevent that are just to preserve fees.
Atamasama is describing a different situation: a lawyer can also be qualified to act as a mediator in family law matters. When they do that, they’re not acting as a lawyer for both parties, but as a mediator, presumably under the professional standards required for mediators.
It’s all semantics anyway. The mediator has to be a licensed attorney. I’m hiring a lawyer to act as a mediator. For the purposes of this thread it doesn’t matter.
We used a mediator to start the process &, in her (the mediator’s) words, it was to document & make sure what we came up with was legal; as long as we agreed to it & it was legal she documented it; whether it was 50/50 or something more novel.
Besides, with what you’re saying, one would have to look at all of the assets. I keep my higher 401(k) but you keep the fancier of the two cars & you get the main house but I get the lakeside bungalow might end up being a 50/50 split across all assets. Valuing all of those assets would be a time consuming & therefore expensive process.