An attorney cannot represent both parties in any divorce-related matter as the parties have different interests. Simply by virtue of the fact that they are getting divorced, their interests are adverse to one another. Thus, both parties should retain their own legal counsel to advise them separately in the drafting of a comprehensive agreement that will address all of their needs. As an alternative, the parties can seek the assistance of a mediator to help them negotiate the terms of an agreement. Lawyers who are trained in mediation can work with both parties together to guide them through the issues they must address, facilitating discussion and agreement between them. The mediator then prepares a Memorandum of Understanding, setting forth the agreements reached in mediation. The parties then review the Memorandum of Understanding with their lawyers, and once a final agreement is reached, the terms are incorporated into a Separation and Property Settlement Agreement for the parties to sign. A well-drafted agreement will address: (1) all issues surrounding custody and parenting time, including decision-making, schedules, vacations, and holidays; (2) equitable distribution of assets and debt, including the marital home, retirement plans, etc; (3) support issues such as alimony, child support, health insurance, work-related child care, college costs, etc. Such an agreement is a binding contract between the parties and is often incorporated into the parties’ Final Judgment of Divorce, thereby becoming an enforceable Court Order.
Amy Zylman Shimalla is a Certified Matrimonial Law Attorney in Warren, New Jersey and a partner with the law firm of Shimalla, Wechsler, Lepp & D’Onofrio, LLP.