On occasion I get a phone call or speak to someone about their divorce and they tell me that everything is going to be simple and they are hoping that I can represent both sides. While these calls are a lot easier than the ones where I hear gunshots, screaming and police sirens in the background, there are two very basic problems with this mindset.
First, there is no such thing as a simple divorce. When you give yourself away in marriage, ending it is complicated, even if it is not an extraordinarily intricate legal process. Admitting that divorce is hard and that you will be grieving is healthy. Denial is not healthy. It is also not healthy to medicate your heart with the narcotic effect of a new relationship until after you have grieved for the one that is being lost, but I will save that speech for another article.
The second problem with the aforementioned (lawyer word for before) idea is that one attorney can never represent two parties in a divorce. Here is why. According to the Mississippi Rules for Professional Conduct for Attorneys, a lawyer “Shall not represent a client if the representation of that client will be directly adverse to another client.” I know of no way to complete a divorce where the parties are not adverse to one another. Now, although I can only represent one side to a dispute, that person is the boss. If they tell me to prepare documents a certain way, while I will advise them from 360 degrees about the legal consequences of their instruction, I will prepare the paperwork with all the proper bells and whistles and I can process everything that is necessary without dealing with a second attorney. It happens all the time but the key for you to understand is that even in this scenario, I am only representing one person. In fact, my mentor LC James taught me long ago to spell this fact out in the paperwork itself. The divorce contract states very clearly that I am representing one person and the other has been given the encouragement and the opportunity to seek separate legal counsel if they did not choose to do so.
Two non-adversarial approaches for resolving a divorce recognized nationally are mediation and collaborative law. These processes fall under the heading of Alternative Dispute Resolution and may be a more practical solution for the non-adversarial divorce.
Collaborative divorce is a process in which you and your spouse negotiate an acceptable agreement with professional help from a collaborative attorney. It is more like working out a prenup than a divorce. You and your spouse each hire a separate lawyer who advises and assists you in negotiating a settlement agreement. You meet separately with your own attorney and the four of you meet together, if necessary. A collaborative divorce may also involve other professionals, such as child custody specialist or an accountant. Normally, both spouses and their attorneys sign an agreement that requires the attorneys to withdraw from the case if a settlement is not reached and the case goes to court. That is the special part about a collaborative divorce. Collaborative divorce is very new in Mississippi but the notion is exciting. It is almost always better to reach a settlement outside of the formal litigation process, and a collaborative approach to divorce is a very useful tool when progressive minded people are faced with the end of a marriage but they want to maintain the integrity of the family.
Mediation is much more common in Mississippi. I am a mediator and I believe in the process. Essentially, the mediator is a person who helps facilitate communication. This usually happens in a daylong event where everyone is present in one building. The mediator has the opportunity to go back and forth between the parties (who are usually separately represented) and gain insight into what is driving the dispute and the reason that a person is taking a particular position. The mediator works with the parties until the dispute is resolved or there is an impasse. Obviously, mediation involves the added expense of a third party facilitator, but this cost is cheap compared to the price to have one’s dispute resolved by a judge in open court.
While in Mississippi one attorney cannot represent two parties to a divorce, a divorce does not have to be an overly expensive and adversarial process. Alternatives to litigation are becoming the rule, not the exception, and I strongly encourage you to ask questions about mediation and collaborative law if this is of interest to you. I do not recommend that anyone proceed in a divorce without the advice of independent counsel, even if it is only to complete an initial consultation and review the paperwork that your spouse’s attorney has created.
Craig Robertson is a divorce attorney practicing throughout Mississippi.