The question “do we both need an attorney?” is an interesting one, and one that I would answer in three ways: yes, no, and maybe.
What seems like an easy question (is there ever an easy question?) is really a lot more complicated than you might think at first blush.
The easy question is actually this one: “do we both need an attorney in a contested divorce case?” The answer to that, reader, is an emphatic and unqualified “YES!”
An uncontested divorce, though, is a little more nuanced – and, of course, it depends on what side of the case (and the legal representation) you’re on.
First, a rule.
No one divorce attorney is ethically allowed to represent BOTH parties.
You may be able to share a mediator between you and your husband (though whether or not that is advisable is the subject of a different article than this one) but it absolutely, positively DOES NOT work that way with lawyers.
Besides, of course, the fact that we represent women only (and we couldn’t say that if we were also representing husbands, even in uncontested divorce cases), it is against the ethical rules in Virginia.
We owe our clients our best advice, and we can’t give our best advice to two adverse parties. In a divorce, even in an uncontested divorce, you are not on the same side, and one attorney cannot serve both sides equally effectively.
The rules say we have to “zealously represent” our client, and you really can’t be zealous about two opposing parties with different interests and needs. It’s hypocritical. It’s not possible.
It’s different in, say, a wills and estates case where a husband and wife get a joint will drawn up – in that case, husband and wife are not adverse parties, and share the same goals. It would be possible to represent the two of them effectively, but that’s not the reality for divorcing parties.
You can not share an attorney. But it is possible for only one side to be represented by an attorney in an uncontested divorce hearing.
It happens fairly often. I have a client, and husband never hires an attorney. He signs the separation agreement, with however much drama and negotiation, and ultimately we’re at the point of getting the uncontested divorce.
In my experience, a husband who was unrepresented at the separation agreement phase will not hire an attorney for the uncontested divorce. In those cases, when I have him served with the complaint for divorce that I’ve filed, I’ll also include a waiver. A waiver is a document that allows us to move forward with the divorce without further notice to him. I hope he signs it because, if he does, I can file my final divorce decree without his approval or signature, and without clearing any dates for any hearings (if necessary – though not always necessary in an uncontested divorce by affidavit) with him.
As far as I’m concerned, it’s the best thing that can happen – for my client.
If you’re on the other side, though, and he’s the one with an attorney, my advice to you is that you have whatever you receive reviewed by an attorney of your choosing.
You don’t have to hire an attorney. But you only get one bite at the apple here, so it’s important that whatever you do, you do in full knowledge.
If you receive a separation agreement, you should have it reviewed before you sign. If you are served with a complaint, you should have it reviewed before you sign a waiver.
Technically, once you’ve been served with a complaint, you have three options: (1) sign a waiver, (2) file a responsive pleading, or (3) do nothing – and be in default.
In fact, I advise that you don’t sign a waiver. If I were you, I’d want to file a responsive pleading. But what’s that?
In a lawsuit, a complaint is the document that opens up the case and sets forth the allegations. The responsive pleading, called an answer (and sometimes an answer and counterclaim, if competing allegations are made) is the document that formally responds to it. It is the responding party (the ‘defendant’, though you should know that this doesn’t have the negative connotation that it does in criminal cases) saying, “I am here, and this is MY side of the story.”
When you file an answer and counterclaim, you become a party to the suit. Dates can’t be set without your input. A final decree can not be filed for entry without your signature. It gives you one last look at things before they’re made part of the permanent record of your case.
I’m not saying your husband’s attorney is necessarily up to some funny business. I certainly don’t think that about myself, when I’m representing my own client zealously and her husband is unrepresented. I just think that I’m doing the best I can to secure HER best interests. So, if there’s something I can slip in, say, that the agreement doesn’t cover or that could be construed in one of two ways, I go with what will benefit her the most.
Your husband’s attorney will do the same. Maybe that’s fine with you. Maybe there’s nothing he can even do! But don’t you think you should make sure?
You should always have documents AT LEAST REVIEWED by an attorney. You don’t have to hire to do this; you can pay the attorney’s rate and have a regular consultation where you just have your documents reviewed and decide on a course of action. For the attorney to draft and file an answer or answer and counterclaim for you, you’ll likely have to hire – but it may be that you could also get enough pointers to do it yourself. Whatever you do is up to you, but I am a firm believer that whatever your choice is, you should choose it will full and complete knowledge of what its impact to you would or could be.
Keep in mind: There may be unfinished business in your uncontested divorce if you’re an unrepresented party!
When we file a final divorce decree with the court, we often include other documents – usually, things like QDROs, TSP orders, and military pension orders.
When I do QDROs for my clients, I do the ones that give my client a benefit. I’ll do the ones that mean I take the money from HIS retirement accounts, and move them to HERS.
He’s…on his own.
I’m not going to spend my client’s precious trust account funds to make sure he gets his share of her retirement! No, that enforcement piece is on him. So, I’ll enter the divorce with her documents done, but not his.
He’ll need to retain his own attorney to have those drawn up. In fact, my agreements reflect this, so it’s not like he’s playing some crazy guessing game. It’s all there, in black and white. It’s also one of the things that you can miss if you don’t have an attorney review YOUR documents. It’s best to capture these pieces contemporaneously, if at all possible – because, over time, it just becomes more difficult to get things in place.
See? I told you it was complicated. So, yes, you can do it without an attorney (while you’re represented and he’s not, or while he’s represented and you’re not), but with caveats. If you are the unrepresented party, proceed with caution. Be aware. Have your documents reviewed. There’s too much at stake otherwise!
For more information, or to schedule a consultation, give our office a call at 757-425-5200.