My Spouse Already Has a Divorce Lawyer in New Jersey: What Do I Need to Know?

Part of our September series on responding to a New Jersey divorce complaint. Start with the hub: Served with Divorce Papers in New Jersey.

People come to us ashamed or embarrassed in this position. They should not feel that way. Someone had to hire a lawyer first. The fact that your spouse did so before you says nothing about you or how the case will end.

But it does mean you are behind and are about to be dealing with a trained professional whose job is to get the best possible outcome for your spouse. That is not a criticism of that lawyer. It is a description of what lawyers are supposed to do. The problem is not that they are doing something wrong, but that nobody is doing the same for you.

This post explains what your spouse’s attorney is and is not permitted to do, what changes when you retain counsel, and what to do if you believe you cannot afford a lawyer. That last point matters more than most people realize, and it is where this post ends.

What Your Spouse’s Divorce Lawyer Can and Cannot Do to an Unrepresented Spouse

New Jersey lawyers are bound by the New Jersey Rules of Professional Conduct (“RPCs”). There is a specific rule governing how an attorney may deal with a person who has no lawyer, and almost nobody explains it to the person it is meant to protect.

“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” RPC 4.3.

What your spouse’s lawyer may not do

• They may not state or imply that they are neutral, disinterested, or looking out for both of you. If you have that impression, the rule requires the lawyer to correct it.
• They may not mislead you about their role in the case.
• They may not give you legal advice, with the narrow exception of advising you to obtain your own lawyer.

One clarification on that last point, because it comes up. If your spouse’s attorney explained what a provision means, or told you a deal was fair to you, that may or may not cross the line into prohibited legal advice depending on the circumstances. Either way, the practical answer is the same. Do not rely on it. It came from someone whose obligation runs entirely to the other side.

What your spouse’s lawyer may do, and what it will feel like

What surprises many people is that what feels unfair may be entirely proper, and complaining about it usually does not help.

• They may take aggressive positions on support, custody, and property, including positions they know a court might not grant.
• They may serve discovery that is burdensome and time-consuming for you to answer.
• They may file motions on the court’s schedule instead of yours.
• They may draft a settlement agreement that favors their client in every provision.
• They may decline to extend you the professional courtesies that lawyers extend to each other, including deadline extensions.

None of that is misconduct. It is representation. Knowing the difference matters, because a party who is convinced the other lawyer is cheating will spend the case filing grievances instead of building their own position.

A client came to us after fully negotiating a divorce settlement agreement drafted by their spouse’s attorney. They wanted us to review the agreement to ensure it was in their best interest before they signed. Of course, it wasn’t. The agreement provided the spouse with a lot of protections that were not also afforded to the client, imposed many obligations on the client without the spouse having the same requirements, and had substantive terms as to alimony, child custody, parenting time, and visitation, equitable distribution, and even child support that were very favorable to the spouse and unfavorable to the client. After realizing this, the client did not want to sign the agreement and instead wanted to renegotiate what they and their spouse thought would be the final terms of their divorce. The spouse and their attorney were outraged that the divorce was not settled as they thought, accused us of interfering with a deal, and blamed the client for not signing an agreement with terms they believed the client already agreed. After the divorce case was filed, the case settled anyway on terms that were not only fair, but much better for the client than those in the settlement agreement the spouse’s attorney originally drafted.

Actual results may vary. Prior case results do not guarantee similar outcomes.

Why Retaining a New Jersey Divorce Lawyer Stops the Other Attorney From Contacting You

This is the most immediate and concrete thing that changes, and it happens as soon as you retain counsel.

Under the Rules of Professional Conduct, a lawyer representing a client may not communicate about the matter with a person the lawyer knows is represented by other counsel, unless that person’s lawyer consents. The moment opposing counsel is aware you have an attorney, the calls and letters to you stop. Everything goes through your lawyer.

“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter . . . unless the lawyer has the consent of the other lawyer, or is authorized by law or court order to do so, or unless the sole purpose of the communication is to ascertain whether the person is in fact represented. Reasonable diligence shall include, but not be limited to, a specific inquiry of the person as to whether that person is represented by counsel.” RPC 4.2.

If you have received letters from a lawyer who is not on your side, that change alone is worth the consultation. It converts a situation where you are personally absorbing pressure into one where a professional absorbs it for you and tells you whether you need to respond, and what requires a response.

How Far Ahead of You Your Spouse’s Divorce Lawyer Already Is

Complaints for divorce are not usually filed the week somebody decides to get divorced.

By the time you were served, your spouse probably had a consultation weeks or months earlier, followed by retention, information and document gathering, drafting the complaint, and filing. Your spouse has been living with this decision, and working on it with counsel, for a period of which you had no knowledge. Some clients learn in discovery that financial records were being assembled a year before their spouse filed.

This is worth understanding for two reasons. The first is emotional. You are not slow; you just weren’t invited to the beginning of this process. The second is practical. Being months behind on preparation can be fixed, but only by starting now. Each week you spend deciding whether to hire someone is another week of the gap widening.

A client and her spouse had long agreed to get divorced. Unbeknownst to the client, the spouse had retained counsel, who was likely guiding the spouse on how to position himself as best as possible in the divorce, including by convincing the client to take certain actions that may seem fine but are against her interest in the case, like moving out of the home into a one-bedroom apartment without enough room to exercise primary custody of her children. The spouse acted on that guidance, and the client took many of those suggestions without counsel or knowing her spouse had a lawyer. After disagreements arose between the client and her spouse, she consulted with and retained us, and we filed for divorce. In discovery, the client was shocked to learn that her spouse paid a retainer to his attorney six months prior to when she and her spouse agreed to get divorced, meaning her spouse was misleading her and acting in bad faith. The matter ultimately settled on fair terms, but because the client was deliberately misled by her spouse while she was acting in good faith and with pure intentions, she will likely not trust him when issues between them arise in the future, including as to custody, support, and college expenses.

Actual results may vary. Prior case results do not guarantee similar outcomes.

Served with Divorce Papers in New Jersey: The First 35 Days

If Your Spouse’s Divorce Lawyer Sends You a Proposed Settlement Agreement

Agreements drafted by opposing counsel tend to contain specific provisions that are easy to overlook. Watch for all of these.

• A clause reciting that you were advised to obtain counsel and chose not to. That language can defeat a later argument claiming you did not understand what you signed.
• A waiver of full financial disclosure, or an acknowledgment that you are satisfied with the financial information provided. This can foreclose a later challenge based on assets you never knew existed or income you did not know was as high.
• A waiver of the Case Information Statement exchange, which is how you would have learned what your spouse actually earns and owns in a signed and sworn statement.
• Provisions stating that equitable distribution terms are non-modifiable. Unlike support, property division generally is not revisited, and this language confirms it.
• Alimony language saying how much is to be paid and how frequently without addressing duration, retirement, or cohabitation.
• Custody or parenting time terms that are not specific, which will lead to disagreement and future applications to establish a schedule, or terms described as temporary that will, in practice, become the arrangement the court treats as established.

How New Jersey courts treat settlement agreements once they are signed

New Jersey strongly favors settlement. A matrimonial settlement agreement is treated as a contract, entitled to considerable weight, and courts do not disturb fair and definitive arrangements lightly. Agreements can be set aside for fraud, coercion, undue pressure, overreaching, or unconscionability, but that exception is narrow, and unconscionability requires a showing of real bargaining disparity or terms so one-sided no reasonable person would accept them.

Being unrepresented when you signed is not, by itself, enough to set an agreement aside. It is a factor a court may weigh in the procedural unconscionability analysis, alongside sophistication, the complexity of the terms, and the circumstances of the signing.

The practical rule is simple. Contact us before you sign. If you contact us afterward and want out of an agreement you already signed, the analysis is far deeper, it requires a motion, and the law above makes clear that relief is the exception rather than the rule.

Above, we shared a case example where a client came to us after fully negotiating but not yet signing a divorce settlement agreement drafted by their spouse’s attorney that was very one-sided in their spouse’s favor. If the client had signed the agreement before coming to us, the client may have been stuck with it and its bad terms unless the court granted a motion from us to set the agreement aside, which is not guaranteed. Because the client hired us first, the parties ultimately settled anyway, but on fair terms.

Actual results may vary. Prior case results do not guarantee similar outcomes.

The New Jersey Case Information Statement and Why It Matters

You May Not Have to Pay for Your Own New Jersey Divorce Lawyer

This is the section we most want people to read, because the most common reason someone stays unrepresented against a represented spouse is money. That belief is often wrong.

Per N.J.S.A. 2A:34-23 and Rules 4:42-9(a)(1) and 5:3-5(c), New Jersey courts have the authority to order one party in a family action to contribute to the other party’s counsel fees, including in the middle of a case (meaning pendente lite), and including by ordering a litigation fund funded through the sale or mortgage of assets. In deciding the amount to be awarded, the family court must consider the Rule 5:3-5(c) factors:

“(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.”

In a case where one spouse controls the income and has already retained counsel while the other has not, that disparity is often the core of the argument.

A fee application can be made while the case is pending rather than at the end. That matters, because a fee award that arrives with the final judgment does not help you retain anyone at the beginning, which is when representation does the most good.

The fact that your spouse hired a lawyer first is part of this argument, not an obstacle to it. A court looking at a case where one party has counsel and the other cannot afford any is looking directly at the imbalance the rule exists to correct.

If cost is your reason for not calling an attorney, raise it at the consultation instead of assuming the answer. It is a routine conversation, and there is nothing awkward about it.

We represented a client whose spouse made a much higher income and had control of all of the family’s assets. After paying a standard and modest retainer fee to hire us, we filed a motion on the client’s behalf seeking significant relief pendente lite, including for attorney fees and a litigation fund to be paid by her spouse. The spouse strongly opposed the request, but the court recognized the financial disparity, granted our request for attorney fees, and ordered the client’s spouse to provide her with a litigation fund to level the playing field so she could litigate the divorce with us as her lawyers.

Actual results may vary. Prior case results do not guarantee similar outcomes.

Divorce When One Spouse Controls the Finances

A Word About Consulting Several New Jersey Divorce Lawyers

Something worth knowing before you start calling firms.

When you consult with an attorney about your matter, even briefly and even without retaining them, that consultation can create a conflict that prevents the attorney from later representing your spouse. That protection exists for good reasons. It also means a spouse who wants to limit the other side’s options can consult with several well-regarded firms early on.

RPC 1.18(a) generally prohibits a lawyer who has had discussions with a prospective client from revealing any information acquired during the consultation. RPC 1.18(b) precludes any representation of a client with interests materially adverse to those of a former prospective client in the same or a substantially related matter if the information acquired from the former prospective client could be significantly harmful to that person in the matter.

Courts deciding a motion to disqualify must balance maintaining the highest standards of the profession against a client’s right freely to choose counsel. Dewey v. R. J. Reynolds Tobacco Co., 109 N.J. 201 (1988).

To address the risk that parties hold bad-faith or strategic consultations intended to conflict attorneys out of representing an adverse party, New Jersey courts apply a high burden. Before disqualifying an attorney under RPC 1.18, a court must find that the information disclosed in the consultation is the same as or substantially related to the present matter, and that the disclosed information would be significantly harmful to the former prospective client in that matter. O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206 N.J. 109 (2011).

The party who had the consultation must offer more than bald and unsubstantiated assertions that they disclosed business, financial, and legal information they believe might be related to the present matter. Matters are substantially related if the lawyer received confidential information from the former client that can be used against that client in the subsequent representation, or if facts relevant to the prior representation are both relevant and material to the subsequent one. Information is significantly harmful if it is prejudicial in fact to the former prospective client within the confines of the specific matter in which disqualification is sought. O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206 N.J. 109 (2011) (quoting City of Atl. City v. Trupos, 201 N.J. 447 (2010)).

The practical takeaway: if you are serious about a particular firm, call early. Consulting with us to try to conflict us out of representing your spouse is unlikely to work, and waiting to contact counsel carries a cost beyond lost preparation time.

What to Do This Week If Your Spouse Has a Divorce Lawyer

• Stop communicating with your spouse’s attorney. If they contact you, tell them you are seeking counsel, and end the conversation.
• Do not sign anything they send you, including documents described as routine, procedural, or temporary.
• Schedule a consultation now rather than after you have decided what you want out of the case. Those are different questions, and representation can help you decide what you actually want instead of agreeing to a bad settlement.
• Bring everything you received, plus any financial documents you have handy, including tax returns, pay stubs, and account statements.
• Ask directly about counsel fee applications if cost is your concern.
• Write down the date you were served. It controls your response deadline.
• Do not mention anything to your spouse about legal strategy. Assume anything you tell your spouse reaches their attorney.

I Don’t Want a Divorce But My Spouse Filed

How Much Does a Divorce Cost in New Jersey?

Frequently Asked Questions: When Your Spouse Has a Divorce Lawyer in New Jersey

Can I talk to my spouse’s divorce lawyer in New Jersey?

You can, but it’s a bad idea. That attorney represents your spouse and owes you no duty. Nothing you say is confidential, and everything you say can be used in the case. Under the Rules of Professional Conduct, your spouse’s attorney may not imply they are neutral or give you legal advice beyond telling you to hire your own lawyer, but they are permitted to listen to anything you volunteer.

Do I need a lawyer if my spouse already has one in New Jersey?

In any case involving children, real property, retirement accounts, a business, or support, yes. The issue is not fairness between the two attorneys. It is that one side has a professional advocating for them while the other does not. Divorce judgments are generally final, and what you give up in a settlement agreement without counsel is generally not recoverable afterward.

Can my spouse’s lawyer contact me directly after I hire an attorney?

No. Under the Rules of Professional Conduct, a lawyer may not communicate about the matter with someone they know is represented by other counsel, absent that counsel’s consent. Once you retain an attorney and opposing counsel is notified, direct contact between you and opposing counsel stops, and all communication goes through your lawyer.

Should I sign the settlement agreement my spouse’s lawyer sent me?

Generally, not before your own attorney reviews it. The agreement was drafted by someone whose obligation is to your spouse, not you. Property settlement agreements in New Jersey are generally durable and enforced. Watch particularly for clauses reciting that you declined counsel, waivers of financial disclosure, and other terms framed as non-modifiable.

Can my spouse be ordered to pay my divorce attorney fees in New Jersey?

Yes. New Jersey courts have authority to order one party in a family action to contribute to the other’s counsel fees, and a significant income disparity is central to that analysis. An application can be made while the case is pending rather than only at the end. If cost is why you have not retained counsel, raise it during a consultation.

Is it too late to hire a lawyer if my spouse filed months ago?

No, though sooner is better. Positions taken and orders entered while you were unrepresented are harder to undo than to prevent, but they are not always permanent. What matters most is whether deadlines have passed and if you signed anything. Bring everything you received to the consultation.

Does consulting a divorce lawyer prevent my spouse from hiring them in New Jersey?

It can, but the standard is demanding. A consultation may disqualify that attorney from later representing your spouse only if the information you disclosed is substantially related to the matter and would be significantly harmful to you in it. Strategic consultations intended solely to conflict out good attorneys generally do not meet that burden.

Contact The Law Office of Rajeh A. Saadeh, L.L.C.

Being the second person in your marriage to call a lawyer is not a disadvantage you have to keep. It is a gap, and it can close.

What does not close is the space between someone with a professional advocating for them and someone handling a divorce alone against trained opposing counsel. That gap widens every week. The Law Office of Rajeh A. Saadeh, L.L.C., represents clients throughout New Jersey in divorce litigation, including clients who are starting from behind. We serve clients statewide, including Somerset County, Middlesex County, Morris County, Hunterdon County, and Monmouth County.