I often receive phone calls from potential clients who want to know whether I can handle their uncontested divorce. My answer is always: no. Before you run away from this post and my law firm webpage entirely, let me explain.
Florida allows for uncontested divorces. Every state allows the parties to agree to the settlement of their property and child custody or child support issues. To that extent, such an amicable divorce is “uncontested” because everyone is in agreement. Seems obvious, right? However, uncontested divorce can also mean simply that no one is at fault for causing the demise of the marriage. Florida is one of those no-fault divorce states. Florida doesn’t care why you’re getting divorced, unless the reason somehow affects the martial assets (for example, when one spouse wastes money on elaborate vacations with a mistress) or the reason for the divorce impacts child safety and welfare (for example, the divorce is because the child needs to be removed from an abusive environment). The issues may be relevant but are not required for a divorce. No one can be trapped in a situation in which they don’t care to live any longer, with or without a reason. In Florida, it is only necessary in a petition for dissolution of marriage to state that the marriage is “irretrievably broken.” This was not the case in prior decades, and some states still allow a cause for divorce, along with the no fault concept, for example Alabama and Tennessee.
Why don’t I take “uncontested” divorces? First, an intake caller asking me to take an uncontested dissolution of marriage case almost always wants me to represent both spouses. To do so would violate the rules that govern Florida attorneys. In a divorce, the parties’ interests are so at odds, it is not possible to reconcile the conflict of interest by having the spouses waive the conflict of interest. There are some types of legal relationships where waiver of conflicts of interest may be possible and even helpful to clients, for example helping two people form a business partnership – the business partners have mutual interests and a common legal goal. Thus, to represent both spouses in a divorce would be a violation of the rules and subject me to a potential bar disciplinary action.
But even if the rules were broad enough to allow me to represent both spouses in a divorce, I wouldn’t. A divorce is rarely 100% uncontested. Assuming that the rules allowed it, and I took on the task of representing both spouses, part of the conflicts waiver/disclosure would require that I tell the clients that if at any point there arose a dispute, I would have to send both clients to new attorneys. The likelihood of that happening are so great that it would be a waste of time and money for me or the clients to attempt mutual representation in a divorce. There will always be something on which the spouses in a divorce cannot agree – an expensive piece of jewelry, the television, the antique china hutch, the dishes in the china hutch, who’s getting the child tax credit, life insurance to cover future child support, etc. And it is rare that a caller has considered every possible legal issue that would be covered in a thorough marital settlement agreement or parenting plan – how are you going to split the equity in the house when the spouse keeping it can’t afford or does not have the credit for a refinance? When I bring up those seemingly minor but very important issues, suddenly the “easy divorce” requires the spouses to do a lot more thinking on issues for which agreement isn’t easy to accomplish. I’m not looking for clients that I can only help for a few days, only to send them to another lawyer that they work with for months or years and then have the client forget about me. Such practice would be in opposition to my goal of creating long term relationships with my clients.
My approach to “uncontested” cases is to only schedule an intake meeting with the actual caller and to only represent that spouse. If it truly is uncontested, then we should be able to draft everything as the client desires (within the bounds of the law), and the other spouse can hire a lawyer for a review of the documents and/or sign it after I disclose that they should seek independent counsel. And in the event the spouse who hired me wasn’t quite right about how “in agreement” they are with the other spouse, we can still move forward in an efficient manner, without sending the client elsewhere.
If you think that you and your spouse are in agreement as to your marital settlement agreement, parenting plan, child custody, or child support in Florida, great! You’ll save on legal fees, but let’s be sure you have considered all of the possible legal issues and are in a truly “uncontested” divorce.