Perhaps you and your spouse are on relatively good terms and worked out many of the marital issues. These might include child custody, child support, alimony, and division of marital assets.
Under these circumstances, it might appear logical to hire one lawyer to draft the divorce agreement and file the legal documents with the court to have the divorce entered.
In New Jersey, however, a lawyer cannot ethically represent both parties in a divorce action. There is an inherent conflict of interests in advocating for two clients with differing and opposing interests. Even if you and your spouse agree on all terms of divorce, what is best for one of you might not be best for the other.
Divorce mediation, however, allows both spouses to use one mediator as a neutral third party to facilitate agreement on all marital issues.
The mediator cannot, however, give legal advice to you or your spouse. Only a lawyer can give you legal advice.
The mediator also cannot draft legally binding documents or file legal documents with the court.
When you reach an agreement with your spouse, the divorce mediator draws up a document called a “Memorandum of Understanding.” It is not legally binding.
Therefore, you and your spouse should each hire a lawyer to obtain your own legal advice on the terms and implications of the Memorandum of Understanding.
In addition, at least one of you needs a lawyer to:
- File the necessary legal documents with the court, including the Complaint for Divorce; and
- Prepare the legally binding agreement called a “Marital Settlement Agreement.” The other spouse should at least consult with his or her own lawyer to advise on the legal implications of the Marital Settlement Agreement and propose any changes to protect his or her interests.
Therefore, it’s important to consult with a lawyer early on to learn how to protect your legal and financial interests and achieve the most cost effective amicable out-of-court resolution.
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