By: Rachel Emendorfer*

Marriage. What starts in hopeful beginnings often ends in bitter legal battles. In the United States, over 600,000 divorces occur each year.[1] But the prevalence of divorce in this country should not be mistaken for the ease of obtaining one. Ending your marriage can not only take months to accomplish but may also drain your bank account in the process. The average cost of a divorce in the United States currently ranges from $15,000 – $20,000, with most of this money going towards your attorney fees.[2]

 

With this hefty price tag, money is frequently the forefront consideration when deciding to get a divorce. This is especially the case for women, with many claiming they stay in their marriage due to financial insecurity.[3]

 

Despite improvements in recent years, the wage gap is still alive and well. In 2022, women earned about 82 cents for every dollar earned by men.[4] Additionally, in a heterosexual marriage, women still carry the brunt of childrearing responsibilities,[5] which in turn reduces their income by decreasing time spent at their paying job. Consequently, the cost of a divorce, coupled with the socioeconomic realities for women, create a situation where many women are unable to finance a divorce attorney, thus binding women to their marriage or making them reliant on their husband to fund the divorce.

 

Insufficient funds barring access to legal representation is a problem that is relatively unique to the realm of domestic matters. This is because the contingency fee payment option, which is typically available in most legal disputes, is not available for those seeking a divorce.[6] A contingency fee allows a client to contract their attorney’s payment contingent upon the outcome of their lawsuit, typically involving the attorney agreeing to receive a percentage of their client’s award from either winning or settling the case.[7] Despite its usefulness, the contingency fee payment structure has been barred from divorce proceedings since its introduction into the United States’ court system.

 

The contingency fee payment structure, introduced in the 1800’s as a way to make the court systme more accessible to plaintiffs without reserves of cash, quickly grew in popularity in the United States.[8] However, the use of a contingency fee to secure a divorce was, from the start, a concept the courts vehemently opposed.[9]

 

In the nineteenth century, married women were, from the law’s perspective, the property of their husbands.[10] They had no independent legal identity and were considered incapable of entering contracts.[11] This treatment blocked married women from accessing legal counsel to obtain a divorce, effectively making them prisoners in unwanted marriages.[12] Even as married women gained legal recognition, the financial barrier to obtaining a divorce still acted as a hurdle to securing a divorce. Desperate to escape their marriages, many women tried to get around their lack of funds by entering a contingent fee arrangement with their attorney.

 

In Jordan v. Westerman, Mrs. Jordan did just that in an effort to escape her husband’s habitual beatings.[13] Because her husband controlled the family finances, Mrs. Jordan lacked independent funds to pay her divorce attorney.[14] Thus, Mrs. Jordan agreed to pay her attorney a portion of what she received from the divorce decree.[15]

 

The Michigan Supreme Court rejected this contingency fee arrangement and determined it to be void due to public policy.[16] The Court claimed that “families shall not be broken up for inadequate causes” and allowing such payment structures would prevent reconciliation of the couple.[17] To support this reasoning, the Court voiced concern that making the attorney’s payment contingent on the divorce would induce attorneys to alienate the couple and press the divorce to completion regardless of their client’s interests.[18] This policy rationale has been repeated in courts throughout history, continuing to block women from securing legal representation for a divorce.[19]

 

This case law eventually made its way into the modern-day rules governing attorneys. The Model Rules of Professional Conduct expressly prohibits an attorney from entering a contingent fee arrangement to secure a divorce.[20] While the American Bar Association does not provide reasoning for this ban,[21] some scholars suggest the reasoning mirrors that of historical caselaw.[22] Specifically, allowing contingency fees would prevent reconciliation of the marriage and attorneys would be tempted to take advantage of “‘emotional,’ economically dependent” parties for their own financial gain.[23]

 

At first glance the ethical twist on the contingency fee ban may appear reasonable. Of course, society does not want lawyers to take advantage of clients during an emotional time in their lives. And, of course, society does not want lawyers to force a legal result that would be contrary to their client’s interests.

 

But if these are valid concerns for contingency fees in divorce, why aren’t they valid concerns for other legal disputes?

 

Take for example, personal injury cases where contingency fees are most common.[24] Is it not likely that people in these situations are at a vulnerable and emotional time in their life? Is it not a concern that an attorney would seek to take advantage of this person, by potentially pushing their case to trial in hopes of a larger damages award?

 

Asking these questions demonstrate that mere ethical concern cannot be the sole basis for banning contingency fees in divorce proceedings. If it were, ethical concerns would mandate a ban on contingency fees for all legal disputes. Therefore, there must be something unique about divorce that necessitates this special treatment.

 

While courts allege reverence for marriage as a reason for the ban, the legal system’s historical treatment of women suggests that the ban operates as a paternalistic protection rather than as an ethical consideration. Protective paternalism–the belief that women are dependent, incapable individuals who must be protected[25]–was very much present in the historical treatment of women. Considered the property of their husband, the legal system has historically operated under the premise that women are not capable of making their own decisions. The ban on contingency fees for divorce proceedings is reminiscent of these early paternalistic beliefs because it suggests women are not capable of understanding the risks of a contingency fee arrangement and entering the agreement anyways.

 

But, regardless of the reasoning behind the contingency fee ban, the disparate impact it has on women in physically and financially abusive relationships dictates the elimination of the rule. Recent research shows that one in four women will experience domestic violence in a relationship.[26] Further, 99% of women in abusive relationships will also be subject to financial abuse.[27] Whether experiencing both forms of abuse, or suffering from only one, women in these relationships are likely to find the task of getting a divorce almost insurmountable. And the ban on contingency fees for obtaining a divorce makes this task even more difficult and to many, impossible.

 

While likely not the intended result, the consequences of this ban are concerning. With a troubling history and ongoing paternalistic functions, it is time for the legal industry to reevaluate the purpose of this rule and consider whether it is doing more harm than good.

 

*Rachel Emendorfer is the Lead Note and Comment Editor of JLI Vol. 42.

[1] Chauncey Crail, How Much Does a Divorce Cost In 2024?, Forbes https://www.forbes.com/advisor/legal/divorce/how-much-does-divorce-cost/.

[2] Id.

[3] Stacy Francis, Money stress traps many women into staying in unhappy marriages, CNBC (Aug. 13, 2019) https://www.cnbc.com/2019/08/13/money-stress-traps-many-women-into-staying-in-unhappy-marriages.html;

[4] Rakesh Kochhar, The Enduring Grip of the Gender Pay Gap, Pew Research Center (March 1, 2023) https://www.pewresearch.org/social-trends/2023/03/01/the-enduring-grip-of-the-gender-pay-gap/#:~:text=The%20gender%20pay%20gap%20%E2%80%93%20the,80%20cents%20to%20the%20dollar.

[5] Id.

[6] Model Rules of Prof’l Conduct r. 1.5(c) (Am. Bar. Ass’n, 2020).

[7] Model Rules of Prof’l Conduct r. 1.5(c) (Am. Bar. Ass’n, 2020).

[8] Peter Karsten, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Fee Contracts, a History to 1940, 47 DePaul L. Rev. 231, 234-49 (1998).

[9] Id. at 249.

[10] Zachary Potter, Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce, Yale L. J. Forum, Nov. 5, 2021, at 298.

[11] Id.

[12] Id. at 299.

[13] Jordan v. Westerman, 62 Mich. 170, 172 (Mich. 1886).

[14] Id.

[15] Id. at 173-174.

[16] Id. at 180.

[17] Id.

[18] Id.

[19] Denise Fields, Risky Business or Clever Thinking? An Examination of The Ethical Considerations of Disguised Contingent Fee Agreements in Domestic Relations Matters, 75 UMKC L. Rev. 1065, 1071-72 (2006) (citing In re Smith, 254 P. 2d 464, 468 (Wash. 1953); Opperud v. Bussey, 46 P. 2d 319, 322 (Okla. 1935); McInerney v. Massasoit Greyhound Ass’n, 269 N.E.2d 211, 218 (Mass. 1971)).

[20] Model Rules of Prof’l Conduct r. 1.5(d) (Am. Bar. Ass’n, 2020).

[21] Model Rules of Prof’l Conduct r. 1.5 Fees – Comment (Am. Bar. Ass’n, 2018) https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/comment_on_rule_1_5/.

[22] Zachary Potter, Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce, Yale L. J. Forum, Nov. 5, 2021, at 296; Carl Ray Grantham Jr., Why Does This River Flow—In Re Cooper and the Continued Prohibition on Contingency Fees in Divorce Actions, 65 N.C. L. Rev. 1378, 1381 (1987).

[23] Zachary Potter, Ridding the Family-Law Canon of the Relics of Coverture: The Due Process Right to Alternative Fee Arrangements in Divorce, Yale L. J. Forum, Nov. 5, 2021, at 296.

[24] Contingency Fee, Cornell L. Info. Institute, https://www.law.cornell.edu/wex/contingency_fee#:~:text=Contingency%20fees%20are%20particularly%20common,50%25%20of%20the%20recovery%20amount (last accessed Feb. 12, 2024).

[25]L.Estevan-Reina, et. al., Feminist or Paternalistic: Understanding Men’s Motivations to Confront Sexism, 10 Front. Psychol., Jan. 16, 2020 https://www.frontiersin.org/journals/psychology/articles/10.3389/fpsyg.2019.02988/full.

[26] M. R. Huecker, et. al., Domestic Violence, Nat’l Library of Medicine, April 9, 2023 https://www.ncbi.nlm.nih.gov/books/NBK499891/#:~:text=According%20to%20the%20CDC%2C%201,sexual%20violence%20during%20their%20lifetimes. ;

[27] Adrienne E. Adams, Measuring the Effects of Domestic Violence on Women’s Financial Well-Being, Center for Financial Security U. Wisconsin – Madison,   https://centerforfinancialsecurity.files.wordpress.com/2015/04/adams2011.pdf.