Fault May Be Relevant In No-Fault Cases

Question: Although my husband and I have not gotten along for years, we stayed together for the children until I knew that I had to get out. I told my lawyer about our marital problems, which included a couple of affairs that I had during our marriage. He told me that I could get a no-fault divorce in a matter of several months and that fault made no difference. Based on this advice, I sued my husband for no-fault divorce and asked for custody of our children (ages 8 and 11), support, and property division.

To my surprise, my husband brought up my transgressions and other fault matters. It was only then that my lawyer told me that fault could be raised when it came to child custody and aspects of the financial issues. I lost custody of my children, came out poorly on the financial end, and caused the break-up of another marriage. I relied on my lawyer, but I never understood what could happen. Had I known all of the ramifications, I probably would have stuck it out. Why didn’t my lawyer explain this to me?

Answer: Although we don’t know what your lawyer did or did not tell you, we do know that oftentimes people who are desperate to leave a relationship 1) hear what they want to hear to justify their decision to divorce or 2) are so preoccupied with their problems they don’t listen or don’t understand the full effect of their decisions. For this reason, it is very important for anyone even thinking about divorce to fully understand the laws of your state and how fault can affect issues that are much more important than divorce. Once you understand the basics, you will be in a position to get answers from your lawyer which you will need before making a decision. Apparently, you never understood the basics. Where can you get this information?

It is available at no charge if you are on the Internet. Just go to the Flying Solo Web Site (http://www.flyingsolo.com), log in, click on "Divorce and Separation," click on "State Info," find your state of residence, and click again. You will find basic information about grounds for divorce, custody, resources, and related matters in each state.

Question: Because I did not have the up-front cash to hire a lawyer and the experts necessary, my lawyer agreed to take my case in return for 15 percent of the settlement I received from my husband. Because I was desperate, I signed an agreement to this effect. Long story short, with 55 hours of my lawyer’s time, I was able to settle my case after only six months. His fee: $18,000. My lawyer did a great job and I could not have gotten the settlement without him, but the fee does not seem fair. Is there anything I can do?

Answer: The agreement you and your lawyer entered into is called a contingent fee contract. Used in personal injury litigation, this type of fee arrangement is generally prohibited in divorce cases because it gives the lawyer a "piece of the action" which is not appropriate. The "reasonableness" of a lawyer's fee is determined by weighing a number of factors including (i) the time required and spent in the case, (ii) the difficulty of the case, (iii) the legal skills necessary, (iv) the results obtained, and (v) the professional standing of the lawyer. Because lawyers are forbidden to acquire interests in litigation, fees in matrimonial cases should not be based upon a percentage of support or property settlement awards.

At the same time, you should remember that your lawyer stepped up to the plate when you needed him and took a risk in representing you. With this information in hand, we suggest that you revisit this issue with your lawyer and try to arrive at a reasonable solution. If you can't, then we suggest that you contact your state bar association and register a fee dispute.