Same Wisconsin divorce lawyer for both spouses?

Same Wisconsin divorce lawyer for both spouses?

I am often asked by potential clients if both spouses can be represented by the same Wisconsin divorce lawyer.   The answer is no.   It is a conflict of interest.  A Wisconsin divorce lawyer’s ethical rules prohibit representing two parties in the same action who have adverse interests.  My duty to you, as the client, is to zealously advocate only your position, and ensure your interests.   I could not do so if I also had a duty to work as hard as possible for your spouse’s interest.

For example, take a typical dispute over the division of a 401k account at divorce.  The spouses agree that it will be split equally.  As a divorce attorney, having addressed this issue hundreds of times, I know that several rules of the 401k plan could allow one spouse, years later, to limit the other’s access to the funds.  If I represent both spouses, what do I do?  If I tell the recipient of the plan, I violate my duty to work for the best interests of the plan owner.  If I don’t tell the recipient, I violate my duty to that spouse as well.

Divorcing couples certainly have adverse interests.   Therefore, the same lawyer cannot advise both clients without violating his duty to one of them.

But what  if the spouses agree on all issues, can a Wisconsin divorce lawyer cannot simply draw up their agreement?  No. Again, because I have a duty solely to his client to advise her of rights, obligations, and possibilities.  That advice may come at the expense of the other spouse.  Again as an example, I must discuss the option of maintenance (alimony) with my client.  In doing so, I am necessarily in conflict with the other spouse, who would be making those payments.

I often take calls from potential clients who say they “agree on everything and just want it written up.”  They ask if I would represent both spouses.   After a little discussion, it usually turns out that the couple really doesn’t agree on “everything,” they simply were unaware of the possibilities and their rights, or were too nervous to ask about them.   Entering into a marriage is an important step, and it is wise to leave a marriage with the same care.  That includes consulting with an experienced Wisconsin divorce attorney to make sure that you understand your rights.

I have represented couples who basically agree on everything.  But in those cases, rather than represent both spouses, I just represent one.   Agreements are drafted according to my client’s wishes, and presented to the other, unrepresented party.   If all goes well, the agreement will be signed and entered.   However, in this way, I, as the lawyer, maintained my ethical obligations and my client received adequate and unbiased representation.

Regardless of whether you and your spouse agree on all issues, it is best to at least consult with a divorce attorney to ensure that your agreement is properly drafted.   I am happy to provide a free consultation.

Every divorce need not result in a mud-slinging trial.   There are adequate means of handling amicable divorces that do not result in conflicts of interest and unsatisfied spouses.  I am happy to consult with any spouse who is searching for divorce representation tailored to  fit his/her needs.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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