On Closing Attorneys

New York real estate closings typically involve 3 lawyers, sometimes more. The buyer will have an attorney representing them. The seller will have their own lawyer. And if the buyer is getting a mortgage as most do, there is an attorney for the lender. Title companies aren’t lawyers but are often owned by them. If the sale of the property is a co-op apartment, the co-op will also have an attorney at the table.

That’s a lot of attorneys.

It probably goes without saying that anyone in a divorce has more exposure to lawyers than almost any other time in their life, and there can be an understandable leeriness about having more. So, upon occasion, I am asked by sellers in a matrimonial sale if they should just use their divorce lawyer for the closing. That’s where it gets a little complicated. What follows is not legal advice, as I am not a lawyer, but is is the result of experience in this space for decades. I have never seen it done, although I’ve been asked about it more than a few times over the years.

Each party’s lawyer has a specific client in the divorce proceeding. Having the other spouse as a client in the closing is unworkable from where I sit. It’s also best to have a real estate attorney do the closing because that’s their specialty. I’ve seen lawyers who don’t just do real estate close transactions on behalf of sellers, and the best I can say is that the results were mixed. Use the specialist, especially if there could be some complexities, like financial distress, issues with the condition of the property, or any number of other possibilities.

I spoke with a matrimonial lawyer about this and was told that it can be done in theory if the divorce proceedings are finalized, but went on:
If the divorcing couple already has a settlement agreement, one of the divorce lawyers might be able to ethically represent both spouses in a real estate transaction if the attorney and the spouses make a written agreement that states the lawyer will handle the transaction in a manner that is entirely consistent with their divorce settlement agreement.

Regardless, I think the practice would be penny wise and pound foolish. The lawyer mentioned that it’s best to use a specialist, and I agree. Everyone should best play their position. Saving a little on legal fees can cost more in the long run if the closing attorney does not specialize in real estate.

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