Question: When my wife of 20-plus years and I separated, she had no trouble finding a lawyer to represent her, considering I have a six-figure income and we accumulated assets in the seven-figure range. After a period of negotiation, it became clear that her lawyer was not going to settle with me even though my wife wanted to end the turmoil, and even though I had offered to pay her alimony and 35 percent of our assets.

My wife was very closed-mouthed about her relationship with her attorney, but it appeared to me that she was afraid of him and was letting him make the decisions for her. She finally told our 17-year-old son – who, in turn, told me – that because she did not have enough up-front cash to hire this lawyer, he agreed to take her case for the greater of an hourly rate or a percentage of the property division settlement he got from me.

It’s clear to me that her lawyer has, in effect, taken an ownership interest in our property settlement that not only prevents him from being objective, but also stands in the way of us getting our case settled. I have discussed this situation with my lawyer, who told me there was nothing I could do as the relationship between my wife and her lawyer was confidential. Is this correct?

Answer: In a word, “No.”. While contingency fee contracts may be common in personal injury and other types of litigation, this type of arrangement is generally prohibited in divorce cases because lawyers are forbidden to acquire interests in most marital litigation for the reasons you have stated which are contrary to public policy.

In most divorce litigation, state courts assess attorney fees using as guides the factors set forth in the canons of professional responsibility that include (i) the amount of time necessary to complete a case as opposed to the actual amount of time spent resolving the case, (ii) the difficulty of the case, including whether there are unusual or difficult legal or factual questions; (iii) the legal skills necessary for a lawyer to properly handle the case, and (iv) the results obtained.

However, reasonable contingency fee arrangements may be appropriate when it comes to collecting past due alimony, child support, and even property division. For example, if a lawyer is hired to collect sums due after the divorce occurs through post-judgment proceedings such as execution on a judgment or contempt proceedings, a contingency fee is acceptable because the collection proceeding does not involve the unique “human relations” element involved in divorce cases. In addition, a contingency arrangement may be the only realistic way in which some folks can retain a competent lawyer to collect what is due to them or their children. In all instances, court-awarded fees must be credited against the contingency fees where appropriate in the first place.

What to do? Since fee contracts and payments to lawyers are not privileged (and even if they were, your wife waived her privilege by discussing them with your son), you and your lawyer can get your hands on your wife’s fee contract and find out for sure how she is being charged. Not knowing more, however, your offer of a 35 percent property division or your alimony offer may be low given your 20-year marriage, and that might have been the reason your offer was rejected.