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(4) There are many legal concepts, special rules, and exceptions not discussed here; and

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HOW MUCH DOES A DIVORCE COST?

GENERAL ESTIMATE OF COST

In my experience, the typical divorce costs between $5,000 and $15,000 to each spouse. Of course, some divorces cost much less. Obtaining a Judgment of Divorce in an uncontested matter might cost as little as a $1,000. I have also seen truly bitter, litigated divorces cost each spouse hundreds of thousands of dollars.

The truth of the matter is this: No one can truly predict the cost of your divorce. There are too many factors involved, including but not limited to the spouses’ ability to communicate, cooperate, and compromise; the strategy and attitude of the attorneys chosen; the Court’s control over the proceeding and decision-making authority; and the issues involved. In general, however, increased fighting will lead to increased costs, and in every case, the proceeding will come to an end whenever you and your spouse come to a final agreement.

CALCULATING ATTORNEY’S FEES

In matrimonial actions, attorneys typically charge an hourly rate. This means that the cost of your divorce will be calculated by multiplying the attorney’s hourly rate by the number of hours of time put into the case. Additionally, you will need to pay various filing fees and court costs.

For example, if your attorney charges $300 per hour and the divorce requires 20 hours of his or her time, the final cost will be approximately $6,000 (i.e., $300 per hour x 20 hours = $6,000). You will also need to pay the fee to file your Complaint for Divorce ($300) and any other fees assessed by the Court, which may include but are not limited to the following: fees associated with filing a motion ($50), filing an Answer to Counterclaim ($175), and attending the Parent Education Program in cases where custody is at issue ($25).

Some litigants ask whether the case can be taken on a “contingency” fee, which is where an attorney collects his or fee based on the financial outcome. For example, in a personal injury case, the attorney typically receives approximately one-third (33%) of the judgment granted to his or her client if successful. A contingency fee, however, is expressly prohibited by the Rules of Professional Conduct in matrimonial cases. Under RPC 1.5(d): “A lawyer shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof[.]” [RPC 1.5(d).]

PAYMENT METHODS ACCEPTED

Attorneys, like most modern businesses, can accept virtually any payment method offered by a client, including but not limited to cash, checks, and credit cards.

DIVORCE FINANCE COMPANIES

There are organizations that specialize in providing loans to fund divorce litigation, including but not limited to the following:

  1. BBL Churchill Divorce Finance – http://www.bblchurchill.com/;
  2. National Divorce Capital – http://www.divorcefunding.info/;
  3. Balance Point Divorce Funding – http://www.balancepointfunding.com/; and
  4. Novitas US – http://www.novitasus.com/novitas-us.

These companies provide loans to cover attorney’s fees, expert fees, and even living expenses during the divorce. The funding may be through traditional loans or through loans, without monthly payments, based on expected settlement.

PAYMENT BY SPOUSE WITH GREATER INCOME & ASSETS

It is the public policy of the State of New Jersey to ensure both spouses have equal access to marital funds to litigate a divorce. This generally means requiring the spouse with greater access to income or assets to provide a portion of those funds to the dependent spouse. Although phrased in gender-specific terms that are, by today’s standards, quite inappropriate, the New Jersey Supreme Court stated as follows as far back as 1971: “[I]t is the policy of our law that counsel fees and costs in matrimonial actions are properly the obligation of the husband and he should be compelled to furnish them to the wife. In this respect, counsel fees and costs are not unlike other categories of ‘necessaries,’ which the law compels the husband, the usual repository of family finances, to furnish to the wife.” [Williams v. Williams, 59 N.J. 229, 233 (1971).]

The purpose of an award of counsel fees in family actions is twofold: “Fees in family actions are normally awarded to permit parties with unequal financial positions to litigate (in good faith) on an equal footing.” [Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992).] Second, it is clear that, “with the addition of bad faith as a consideration,” fees may be awarded to “to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees.” [Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992).]

Thus, the Court’s orders generally takes on two forms:

(1) an advance of attorney’s fees to the dependent spouse at the outset or during the divorce proceeding; or

(2) an order requiring reimbursement (often referred to as an “award”) of attorney’s fees during the divorce proceeding or at its conclusion, which may be to either the supporting spouse or the dependent spouse depending on, among other things, their financial circumstances and their good faith or bad faith conduct during the divorce proceeding.

The MNJD Guide will address the law governing both scenarios.

ADVANCE OF COUNSEL FEES

N.J.S.A. 2A:34-23 allows the court to order one party to advance the other party expert fees or legal services:

“when the respective financial circumstances of the parties make the award reasonable and just.  In considering an application, the court shall review the financial capacity of each party to conduct the litigation and the criteria for award of counsel fees that are then pertinent as set forth by court rule. Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issue then before the court and shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.” [N.J.S.A. 2A:34-23.]

Rule 5:3-5(c) governs the award of counsel fees during the proceeding (often referred to by the Latin term “pendente lite“). The rule provides that subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action. Additionally, it states that a pendente lite allowance may include a fee based on an evaluation of prospective services to be performed and the respective financial circumstances of the parties. [R. 5:3-5(c).]

“Traditionally, it has been customary to award court costs and such additional sum of money for counsel fees as necessary to prosecute or defend a matrimonial action in an efficient manner. Such allowances were considered essential to the proper assertion of the marital rights of the wife, which she might be unable to establish if the husband were not required to provide financial assistance.” [Anzalone v. Anzalone Brothers, Inc., 185 N.J. Super. 481, 486 (App. Div. 1982).]

Nevertheless, Rule 5:7-2(a) governs applications for support and counsel fees pendente lite. The Rule requires the following:

“Applications for support, counsel fees and costs pendente lite, whether made with the complaint or by notice of motion thereafter, shall be accompanied by a completed case information statement in the form set forth in Appendix V to these rules pursuant to R. 5:5-2. If this form has previously been submitted, amendments thereto must be filed with the court no later than eight days prior to the motion hearing date. A completed case information statement shall accompany the response to the application pendente lite. If previously submitted, amendments thereto must be filed with the court no later than eight days prior to the hearing date.” [R. 5:7-2(a).]

AWARDS OF COUNSEL FEES

Both during the divorce proceeding and at final judgment, the Court has the discretion to require one spouse to reimburse the other spouse for the costs of an attorney. [R. 5:3-5(c).]

In determining the amount to reimbursed, the Court must consider the following factors:

  1. the financial circumstances of the parties;
  2. the ability of the parties to pay their own fees or to contribute to the fees of the other party;
  3. the reasonableness and good faith of the positions advanced by the parties;
  4. the extent of the fees incurred by both parties;
  5. any fees previously awarded;
  6. the amount of fees previously paid to counsel by each party;
  7. the results obtained;
  8. the degree to which fees were incurred to enforce existing orders or to compel discovery; and
  9. any other factor the Court determines is important to the fairness of an award. [R. 5:3-5(c).]

The court must also determine the lodestar amount, “which equals the number of hours reasonably expended multiplied by a reasonable hourly rate.” [J.E.V. v. K.V., 426 N.J. Super. 475, 493 (App. Div. 2012).]

A party’s bad faith weighs heavily into the appropriateness of an award of attorney’s fees. [Mani v. Mani, 183 N.J. 70, 95 (2005).] For a court to award counsel fees based on a party’s bad faith, there must be evidence of something more than a showing of an unreasonable, mistaken or frivolous position. [Kelly v. Kelly, 262 N.J. Super. 303, 308 (Ch. Div. 1992).] There must be evidence that a party had malicious motives, was unfair, desired to destroy the opposing party, or used the court system improperly to force a concession which was not otherwise available. [Kelly v. Kelly, 262 N.J. Super. 303, 308 (Ch. Div. 1992).] Bad faith includes unwillingness to negotiate; intentional non-compliance with court orders; seeking relief for which one knows or should know no reasonable argument can be made; intentionally misrepresenting the facts or the law; or pursuing litigation for oppressive reasons. [Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (App. Div. 1992).] “‘[W]here one party acts in bad faith, the relative economic position of the parties has little relevance’ because the purpose of the award is to protect the innocent party from unnecessary costs and to punish the guilty party.” [Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).]

An application for the allowance of fees must be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). [R. 4:42-9(b).] The affidavit must also include a recitation of other factors pertinent in the evaluation of the services rendered; the amount of the allowance applied for; an itemization of disbursements for which reimbursement is sought; and a statement of how much has been paid to the attorney and what provision, if any, has been made for the payment of fess to the attorney in the future. [R. 4:42-9(b)R. 4:42-9(c).]

The Rules of Professional Conduct require that a lawyer’s fees must be reasonable, which is determined by consideration of the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. [RPC 1.5(a).]

FEES INCURRED TO ENFORCE ORDERS

In addition to monetary sanctions to compel compliance, Rule 1:10-3, which governs enforcing Court Orders, states that “[t]he court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule.” [R. 1:10-3.]

An award of counsel fees under this rule, however, is only available to a party that has obtained relief. [Jersey City Redevelopment Agency v. Clean-O-Mat Corp., 289 N.J. Super. 381 (App. Div. 1996).]

An award of counsel fees to the party prevailing on an application to enforce litigant’s rights pursuant to Rule 1:10-3 “is limited to those legal fees and costs incurred in obtaining relief from that conduct of the opposing party which is in violation of litigant’s rights.” [Franklin Tp. Bd. of Educ. V. Quakertown Educ. Ass’n, 274 N.J. Super. 47, 51 (App. Div. 1994).]

FEES INCURRED TO COLLECT UNPAID CHILD SUPPORT

“If a party in any action to enforce and collect child support ordered by a court … has incurred counsel fees, the court shall require the defaulting party to pay those counsel fees unless the court finds that the default was substantially justified or that other circumstances make an award of counsel fees unjust. The court shall determine the appropriate award for counsel fees and shall consider the financial circumstances of the parties and whether each acted in good faith.” [N.J.S.A. 2A:34-23a.]

COLLECTION OF FEES BY THE PROBATION DIVISION

In New Jersey, an award of counsel fees is considered support “if the purpose of the award is ‘to equalize the positions of the parties . . . and to provide the needier individual with the financial means of prosecuting or defending a court action.’” [DiGiacomo v. DiGiacomo, 256 N.J. Super. 404, 410 (App. Div. 1992).]

Counsel fees are considered “support” because they fall within the class of “necessaries,” which includes alimony. [Pelusio v. Pelusio, 130 N.J. Super. 538, 539 (App. Div. 1974).]

As counsel fees are in the nature of support, they may be collected through the Probation Division via wage garnishment. [Cashin v. Cashin, 186 N.J. Super. 183, 187-88 (Ch. Div. 1982).]

COUNSEL FEES NOT AVAILABLE TO THOSE WITHOUT ATTORNEY

In Schlichtman v. New Jersey Highway Authority, the Law Division found no basis for an award of counsel fees to either party, “certainly not to plaintiff who appear pro se[,]” citing Rule 4:42-9(a). [Schlichtman v. New Jersey Highway Authority, 243 N.J. Super. 464, 475 (Law Div. 1990).]

Likewise, in Dunn v. State, Dept. of Human Services, the Appellate Division recognized that a “prevailing party” may be entitled to an award of counsel fees, but reasoned that even so a prevailing who “appeared pro se … is not eligible for an award of counsel fees.” Dunn v. State Dept. of Human Services, 312 N.J. Super. 321, 326 (App. Div. 1998).]

The New Jersey Supreme Court has also declined to award fees to unrepresented litigants. In Segal v. Lynch, our Supreme Court held that even an attorney appearing pro se is not entitled to receive an award of counsel fees: “We see no basis in this record on which to advantage Schofel, the self-represented attorney, by permitting her to be compensated for her time expended in securing relief when others who represent themselves would be precluded from being compensated for their time.” [Segal v. Lynch, 211 N.J. 230, 348 (2012).]

Andrew M. Shaw, Esq. - Somerville, NJ Divorce Lawyer

Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.

Focused. Accessible. Compassionate. Aggressive.


ASSOCIATIONS & MEMBERSHIPS:

  • New Jersey State Bar Association – Family Law Section
  • New Jersey State Bar Association – Young Lawyers Division
  • Somerset County Family Law Practice Committee
  • MENSA International

BAR ADMISSIONS:

  • New Jersey State Bar
  • U.S. District Court for the District of New Jersey