I used to agree with the opponents, but have come to understand the benefits of "on the papers" divorces, based on my experiences in Mercer and elsewhere.
My initial concern was that parties in complex and nasty cases could change their minds after the fact – certainly a foreseeable risk. I also had concerns about cases in which mental capacity was an issue.
Those matters are not well suited to divorce on the papers. We often do them when the defendant is in default or when the settlement agreements are basic and uncomplicated.
Once the option became available, isn't it our obligation to so advise our clients and tell them whether they will be well served by it?
I am a self determination proponent, not only for clients but also for myself. If I perceive there is too much risk involved, then I won't do it, even if the client were to direct otherwise.
Ziegelheim is not an anti-settlement or anti-divorce on the papers decision. It establishes a standard of care that lawyers must meet in assisting settling clients. Using the logic of some objectors, settlements increase the risk of malpractice claims. Therefore, what – encourage more trials?
There is risk in everything we do as lawyers. That is why we (should) carry professional liability insurance.
Putting through a divorce on the papers does not increase the risk of getting sued. We have to properly educate our clients, use good judgment, and document our files, no matter what we do.
Hanan