Question: My wife and I are in the midst of a bitter dispute that, for the most part, focuses on money and property, including the value of my business in which she owns a stock interest. Needless to say, since we can’t live together, we can’t work together any longer, either, so she left her paid position. I have filled that job with another person. We have been married for 14 years, me for the third time and her for the second. I am 58, and she is 43. We have no children. She and her lawyer have made an offer to settle for 15 percent more than I think her interest is worth. According to our valuation, the “marital estate” will be about $1 million. If I don’t settle, we’ll go to court, and, of course, no one knows what a judge will do. If I save 5 percent and am required to pay her fees and mine, however, it may cost me more than settling. Is there a way I can get a read on how the judge may set the fees for her lawyer and how to judge the economics here?

Answer: This is a very good question because too many folks go to court over a comparatively small amount of money without considering the fact that they may just spend more on attorneys’ fees without knowing a concrete result.

Generally speaking, when attorney’s fees are set by the court, the judge is bound to apply the facts of the case to specific guidelines, which may include:

1) The time and labor necessarily expended (that is, the number of hours your wife’s attorney and staff justifiably spend representing her interests).
2) The novelty and difficulty of the questions and issues involved (that is, did your case require a lot of research regarding valuations, etc., and how long did it take to present the case?).
3) The skill required to properly perform legal services for your wife (If the issues were novel and/or if the case was made more complex because of the novelty, or if you were not cooperating, more experienced counsel for your wife would be justified, and they cost more).
4) The inability of your wife’s lawyer to accept other employment due to the acceptance of your wife’s case.
5) The customary fee for similar services. (This is generally construed to mean the hourly rate charged by other attorneys for substantially similar cases).
6) The time limitations that either the client or circumstances imposed prior to and during trial. (If, for example, some days of trial required additional research based on your refusal to provide records, this would be considered).
7) The amount being contested and the result obtained. (Here, there is $1 million in the marital estate and a 14-year marriage – neither of which is chicken feed).
8) The experience, reputation and ability of your wife’s attorneys. (This deals with the professional standing of your wife’s lawyers in the field).
9) The undesirability of taking the case. (If, for example, your wife didn’t have the funds to pay a retainer and expense deposit, the case would be more undesirable than if she could and did).
10) The nature and length of the attorney-client relationship with your wife.
11) Fee awards in similar cases, if available.


Bottom Line: If you and your wife are each found to own half of the $1 million in marital assets, the judge could tag you for her fees, or require that she pay her own fees, or require that her fees – and yours, for that matter – be paid off the top, or some other permutation. Some judges require that offers of settlement (which are generally not admissible) be exchanged between lawyers so that, when the case has been decided, the judge can look at the offers to determine who, in his or her view, acted in good or bad faith, and then issue an order assessing fees using the settlement offers as guidance.

If you think your wife is 15 percent high, remember that each percentage point equates to $10,000 (1/100 of the marital estate). Therefore, as part of the negotiation process, we believe that it will behoove you to think about how much it could cost if you went to trial and the judge awarded her 15 percent less, ten percent less, or five percent less. Then compare that with the cost of trying the case. When it comes down to its most basic definition, divorce is a numbers game, and all parties should keep their eyes on that ball.