This is a question I am regularly asked, and it is often raised in two slightly different contexts. However, in both situations, the driving factor behind the question is (understandably) not wanting to unnecessarily spend money on legal fees that you don’t have to. Your divorce is not a time to be penny wise and pound foolish. You are preparing to divide years of accumulated assets, to plan for your own future financial security, and most importantly, you are setting in motion a plan – both in terms of time and money – that will affect your children for the rest of their lives. The decisions you are about to make are not ones you want to make without legal advice.
(1) Why do I need a lawyer at all if we are in agreement and my spouse has a lawyer to draft all of the paperwork?
In short, you don’t know what you don’t know. I have had many clients who tell me that they have agreed on “everything” but then are surprised to learn that their divorce decree will be anywhere from 50 to 80 pages long when all of the necessary details are addressed. Further discussion reveals that there were many necessary specifics that the divorcing spouses never talked about in their discussions – because they just didn’t know. Did you know that the Texas Family Code is 1,016 pages long? And that doesn’t even touch on the various other multi-page legal codes that we may have to consult to address issues in your divorce. Another way to think about it: I know when I need stitches for a gash in my arm, but I’m not going to stitch myself up. I’m going to the medical experts to let them take care of it – because I don’t know what I don’t know (ok, and they have pain meds, but the point is the same). Your divorce is no different.
(2) Why can’t my spouse and I use the same lawyer for our divorce?
In Texas, the law specifically prohibits one lawyer from representing opposing parties in the same litigation case. If you have not agreed to a Collaborative Divorce, your divorce is legally a litigation case – so no shared attorneys. And there is good reason for this. On most issues, the law is not black and white. Rather it is gray and subject to interpretation. Very sharp lawyers will interpret situations differently, whether due to their own experiences with past clients and courtroom experiences, or maybe even their own biases. It is important that you each have your own divorce attorney to provide an interpretation of the law based on YOUR experience in the marriage and YOUR needs going forward. Attorneys are required by law to “advocate zealously” on behalf of their clients. You just can’t advocate on behalf of two clients with legally opposing interests.
(3) So what do I do?
Find your own attorney. If you are worried about the costs – which most people are – look for an attorney who will work with you to manage costs. There are any number of ways to keep costs under control but still provide you with the legal advice and representation that you, and your children’s future, deserve.
Rhonda Cleaves is a Credentialed Collaborative Divorce Attorney in Plano, Texas, who represents divorce clients in and around Collin County, including Frisco, Allen, McKinney, Dallas, Carrollton, Lewisville, and Denton.
