In any divorce matter, it is important for each spouse to consult with his or her own attorney, who will seek to protect that person’s separate rights going forward. One of the most important documents that divorcing spouses often agree to is a marital settlement agreement or “MSA.” In many cases, the MSA will purport to resolve any number of issues, such as property division, alimony, child support, custody, and other matters. That agreement can be made part of the ultimate divorce judgment, depending on the circumstances and the parties’ wishes. At each step in the proceedings, there are many decisions to be made that could affect the outcome of a case. For this reason, parties are encouraged to secure their own family law attorney, who is experienced handling such cases in the state of Maryland.
In a recent case, the husband and wife had hired an attorney to handle an immigration matter. Some time later, the couple decided to divorce. They discussed separation and agreed to a variety of terms to be incorporated in a marital settlement agreement. In 2005, the wife asked that same attorney to handle memorializing the terms related to the division of marital property. The attorney drafted the document, the husband provided some revisions, and the parties signed the agreement on October 18, 2005. The document contained a clause titled “Independent Counsel,” wherein the husband acknowledged that he signed the agreement without his own attorney, freely and voluntarily.
Despite signing the agreement, the couple did not separate at that time. In 2007, the wife discovered that the husband was having a second extramarital affair, and they decided to prepare another settlement agreement to address issues not covered by the 2005 agreement. Based on their discussions, the wife asked the same attorney to draft another document. The husband was involved in reviewing the document and making certain changes. In 2008, the parties executed the final MSA, which also included an independent counsel provision. In 2009, the husband filed for divorce and simultaneously tried to allege that the 2005 and 2008 agreements were void and unenforceable and should be set aside. He claimed that they were entered into when the parties were still in a confidential relationship with the attorney who handled the previous immigration matter.
The trial court rejected his argument and held that the separation agreements were not unconscionable, and it entered a judgment of absolute divorce in which the agreements were incorporated but not merged. The husband appealed, arguing that under Maryland Lawyers’ Rules of Professional Conduct, the attorney should have obtained the husband’s informed consent, confirmed in writing, as to the attorney’s representation of his wife in connection with the separation agreements.
The court of appeals rejected the husband’s argument, pointing out a few items. First, by virtue of the independent counsel provisions, the husband was aware that the attorney was not representing his interests in the MSAs. Also, there was no evidence in the record that the husband was adversely affected by the information the attorney obtained while representing the parties in the immigration action. Finally, the husband previously went through a divorce with another woman and was therefore a “sophisticated party” fully aware of the benefits of obtaining independent counsel but chose to fully forego such services.
This case illustrates the significance of retaining your own counsel in divorce cases. Anthony A. Fatemi is an experienced family law attorney representing parties in divorce matters throughout the state of Maryland. For help with your family law needs, you are encouraged to contact us at (301) 519-2801, or to submit our online contact form.
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