Can a lawyer in a matrimonial case just draft the divorce decree and leave alimony, support, custody, and property division for the client to handle later?
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This page answers the general question as of 1975. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee considered whether a lawyer retained in a matrimonial matter may simply draft a separation agreement or obtain a divorce decree and leave collateral matters, alimony, child support, visitation, and property division, for later resolution in Family Court. It started from the profession's general duty to help the public recognize legal problems, which often are not self-revealing (EC 2-2), and the lawyer's duty of proper care to safeguard the client's interest (EC 6-4). Where several options are open to a client, the lawyer must inform the client of the possible courses of action and give an honest evaluation of each (Canon 6).
Framing the issue as one of competent representation under Canon 6, the committee observed that a well-handled matrimonial settlement ordinarily resolves alimony, support, visitation, custody, and jointly owned assets. A lawyer who obtains only a divorce decree without addressing these matters raises a serious question about whether the client was competently represented, because the client is likely to face additional, foreseeable legal difficulties that could have been resolved at the time of the divorce. At a minimum, the committee said, the lawyer is professionally obligated to raise these issues with the client, explain their significance, and inform the client that a competently handled matrimonial case ordinarily includes at least a reasonable attempt to resolve them.
The committee located the decision with the client, not the lawyer. Only where the client, after full disclosure of the difficulties facing the client or family, specifically instructs the lawyer not to undertake those problems may the representation be limited to seeking a decree without attempting to resolve clearly apparent collateral issues. It is for the client to decide which legal rights to assert or abandon (EC 7-7, EC 7-8), but that decision must be informed, not one imposed on the client by the lawyer's default or ignorance.
Currency note
This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (competence is now governed by Rule 1.1, the scope of representation by Rule 1.2, and client communication by Rule 1.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a matrimonial lawyer just get the divorce decree and leave everything else for later?
A: Under this opinion, not on the lawyer's own initiative. The committee held the lawyer must at least raise custody, support, alimony, and property division, explain their significance, and tell the client a competent matrimonial case ordinarily attempts to resolve them.
Q: When may the representation be limited to a bare decree?
A: Per the opinion, only when the client, after full disclosure of the difficulties facing the client or family, specifically instructs the lawyer not to undertake those collateral matters.
Q: Who decides which issues to pursue?
A: The client. The committee invoked EC 7-7 and EC 7-8 that the client decides what legal rights to assert or abandon, but stressed that the decision must be an informed one.
Background and rules framework
The opinion frames the question as one of competent representation under Canon 6 of the then-current New York Code, drawing on EC 2-2 (helping the public recognize legal problems), EC 6-4 (safeguarding the client's interest), and EC 7-7 and EC 7-8 (allocating decisions to the client on an informed basis). The current analogues are Rule 1.1 (competence), Rule 1.2 (scope of representation and allocation of authority), and Rule 1.4 (communication).
Citations and references
Rules of Professional Conduct:
- MR 1.1 (competence)
- MR 1.2 (scope of representation; allocation of authority)
- MR 1.4 (communication)
- NY EC 2-2, EC 6-4, EC 7-7, EC 7-8; Canon 6
See also
- NY State Bar Op. 443: A contingent fee to collect past-due support
- NY State Bar Op. 440: Guidelines for withdrawal from a representation
- NY State Bar Op. 442: A lawyer-run pro se bankruptcy school
Source
- Landing page: https://nysba.org/opinion-425/
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