Q: I have been told that it is necessary to get a legal financial separation so that we can both make our wills. True?

A: I'm not sure what exactly your attorney might mean by a "legal financial separation," but it's probably not absolutely required. And you shouldn't let that advice break up your marriage.

Sometimes, we attorneys can tend to be "black and white" or overly analytical in our advice (or even just how we communicate/explain our advice). And that can lead to your type of discomfort or frustration. Perhaps you just need to get more explanation of what the attorney is suggesting: is the real issue just having independent legal advice from your own attorney (rather than joint representation) or some sort of asset balancing/dividing up of your things now?

Generally speaking, an attorney should not represent two people on the same issue when those two people are likely to have different goals/objectives/perspectives. In the estate planning context, it is common for an estate planning attorney to represent both spouses so long as both spouses acknowledge and waive this potential conflict of interest in writing. This potential conflict is heightened in a blended family, especially a blended family in which both spouses have children from previous relationships. The reason? Because there is a POTENTIAL (and as attorneys, we often assume the worst and try to plan accordingly) that when Spouse A dies Spouse B will inherit everything from Spouse A and then eventually pass everything only to the children of Spouse B while the children of Spouse A end up disinherited/completely left out.

Your attorney may have decided that she believes the best way to avoid the outcome above is to ensure that you are both fully represented by independent counsel to protect your rights and ensure the support of your children. Your attorney's advice may not have anything to do with your marriage in particular. I do not believe that Colorado ethics rules require this tactic in all situations. Certainly, there could be other factors not mentioned in your question that could make your current attorney's advice best for your situation. Even then, you probably need not create "financial separation" as if you are not married in order to receive independent legal advice from your own attorney.

I hope this helps, and I hope that all that is really required is another frank conversation with your attorney to more fully understand the advice (and the reasons behind the advice).