abstract. The prohibition on contingency fee arrangements with divorce lawyers is a relic of the coverture regime. It cannot withstand Due Process scrutiny because the supposed governmental interests it purports to advance—burdening access to the divorce process for economically vulnerable persons—are not legitimate governmental interests under modern constitutional jurisprudence.

Introduction

There is an open secret among family-law practitioners that is also a painful truth for many who have experienced divorce: When marital wealth is concentrated in the hands of one spouse, the divorce process commonly and predictably produces unjust outcomes.1 It does not have to be that way.

Alternative fee arrangements could obviate the problem of differential access to marital wealth at the outset of a case, which is a problem that has a tendency to reinforce historic and structural inequalities.2 Specifically, a spouse without access to marital wealth, and therefore without the ability to pay legal fees upfront, could enter a contingency-fee agreement whereby their attorney would eventually earn a percentage of their final award. Indeed, in other areas of the law, alternative fee arrangements are regularly used to the benefit of litigants who cannot afford the out-of-pocket cost of paying lawyers by the hour.3

But for divorce proceedings, there are unique limits on alternative financial arrangements that are deeply embedded in the common law. Those limits stem from the period of “coverture” when men controlled marital property and women had to ask courts for money to pay for lawyers and other “necessaries.”4 When courts adopted rules against alternative fee arrangements in family law, the goal was not to even the playing field. Quite the opposite: Courts created those limits to maintain men’s privileged position in the divorce process.

These limits persist to this day.5 The primary justification for a family-law-specific prohibition on contingency fees is that “emotional,” economically dependent litigants cannot be trusted to withstand an attorney’s interference with a potential reconciliation of the marriage. To protect against this imagined vulnerability, the court supervises the poorer spouse’s access to legal services through the allocation of what is known as “suit money.” This practice started and remains based upon discriminatory and unsupported assumption6 about how “romantic paternalism” places women on a pedestal of protection, when it really placed them in a cage of unfair burdens.7

The bar against alternative fee arrangements in divorce law is about much more than lawyers and money. At its core, it is about how procedural rules about access to counsel and the courthouse can either exacerbate or mitigate power differentials in a marriage.8 In that regard, it is about the compromised decisions that an economically dependent spouse faces when considering a process stacked in favor of the other side, such as staying in an unhappy or abusive marriage, or exiting to their own financial ruin.9 That version of “marital harmony,” where state-created disempowerment subordinates one party in the relationship, was the intended effect of coverture. It has no place in modern family law.10

This Essay argues that it is past time to rid the family-law canon of this relic of coverture. In applying modern constitutional jurisprudence to fundamental rights related to marriage, courts should recognize that prohibitions on alternative fee arrangements fail the heightened constitutional scrutiny that applies to state intrusions on intimate relationships.11

This Essay argues for a due-process right to alternative fee arrangements in three parts. Part I describes the origins of restrictions on alternative fee arrangements in family-law cases. The rules effectively ensured women’s procedural and substantive subordination by preventing them from hiring counsel without proof that they met the discriminatory, one-sided preconditions of the coverture regime.12

Part II explains that over the past half century, academics and other commentators have dismantled the nondiscriminatory, post-hoc policy rationales that courts continue to use to justify the prohibition on contingency-fee arrangements in family-law cases. Despite this fact, the prohibition remains firmly embedded in the family-law canon, alongside other relics of coverture that are not addressed in this Essay.13 There is no reason for such rules to continue to escape serious constitutional scrutiny. If inequality and subordination remain problems with the family-law system, the discriminatory rules that were designed to accomplish those outcomes should be challenged and rejected, irrespective of the gender or sexual orientation of the economically dependent spouse.

Part III argues that the prohibition on contingency fees—as applied uniquely in the family-law context—is subject to the due process balancing test that applies to burdens on a trinity of fundamental rights associated with divorce.14 The discriminatory trope about saving the marriages of emotional litigants is not a narrowly tailored solution meeting an appropriate government interest that justifies a burden on any fundamental rights. If there is no justification to fill its place, then the restrictions must fall in the face of a due process challenge.

I. the coverture-based roots of the restrictions on contingency fees in family law

The origins of the modern rules governing attorney’s fees in divorce cases trace back to the nineteenth century, when marriage laws expressly discriminated against
women.15 The common-law doctrine of “coverture” held that women, once married, “lost their independent legal identity and became the property of their husbands.”16

As part of the “disability” of coverture,17 the common-law doctrine treated married women as the legal equivalent of “infant[s]” who were incapable of entering into contracts, including contracts with legal counsel with respect to a divorce case.18 In other words, the disability of coverture effectively blocked women’s exit path from marriage even though the status of being married created the disability in the first instance. A married woman’s lack of access to legal counsel, and her related inability to access the courthouse on her own terms, created what has been called the “carceral law of marriage.”19 Without access to judicial relief, women could effectively be “bound in unwanted marriages.”20

The courts’ solution was not to provide the parties with equal access to, or decision-making power over, their financial assets to hire attorneys. To the contrary, courts typically awarded female spouses “suit money” that was limited in both amount and purpose.21 The judge—invariably male—would calculate “reasonable attorney’s fees” for the wife to prosecute her case, based upon his view of which issues merited the expenditure of judicial resources.22 This policy tended to support the coverture regime, or at least the long tail of its legacy,23 because the decision-making process over which issues would be litigated largely excluded women. The rule trapped married women in an “archaic . . . caste system” premised on the “completely discredited notion that a married woman, being a female, is without capacity to make her own contracts and do her own business.”24 It also served as a powerful means of entrenching that “caste system” by creating the impression, but not the reality, of equal access to counsel to prosecute a divorce.25 The most profound effects of this system were felt by women in the lower and middle classes because by the eighteenth century, elite women had developed prenuptial contracts maintaining their estates separately from their husbands.26

The best illustration of how the historical provision of “suit money” supported, rather than challenged, the subordination of women can be found in courts’ justifications for denying “suit money” outright. For a woman, the ability to obtain procedural due process through legal counsel was tied to a “fault regime”—that is, the substantive question of whether the woman carried fault in the dissolution of the marriage.27 To obtain suit money from the husband, “the wife could not be at fault in the dissolution of the marriage or otherwise guilty of a marital offense.”28

Historically, the parameters of fault went far beyond modern conceptions of marital fault, which usually center on adultery. Under the coverture regime, “[w]ives owed their husbands strict obedience in all matters, along with domestic and sexual services, and they could not sue their husbands for mistreatment.”29 A woman’s fault could be found in her failure to abide by these rules, which meant that a woman who wished to access the procedural rights and protections associated with legal counsel was first measured against an ideal of female subordination. In the context of a problematic or unhappy marriage, being free of fault could mean quiet tolerance of cruelty that would rise, under modern definitions, to criminal behavior.30 Of course, the husband’s ability to access, use, and control the parties’ financial resources in a divorce case was wholly unconnected to his performance or nonperformance of some idealized version of his marital duties.31 While the rules may have been facially neutral, the fact that the husband controlled both parties’ resources transformed the question of whether to provide “suit money” into a gendered, gatekeeping, and subordinating process.

The state’s role in enforcing these subordinating principles was largely hidden because, as with other forms of so-called “romantic paternalism,” suit money was viewed as a benefit for women, even though it was as much a part of the cage as the rest of the coverture system.32 The question of whether women could contract with attorneys on a contingency basis arose as a direct challenge to the male-controlled fault regime.33 After all, contingency arrangements would have allowed women to acquire representation and litigate the issues that they deemed important or necessary—not only those that a judge deemed so.

Unsurprisingly, courts reacted negatively to such fee arrangements, prohibiting them outright. In the leading case on the topic from the late 1800s, Jordan v. Westerman, the court reasoned that contingency-fee arrangements would contravene the public-policy concern of “maintaining the family relation” because attorneys would be motivated to “induce” parties—meaning women who could not otherwise afford counsel—to pursue “dissolution of the marriage ties as a method of obtaining relief from real or fancied grievances, which otherwise would pass unnoticed.”34 In other words, contingency-fee arrangements would enable women to raise grievances that courts believed were better left ignored.

The Jordan court’s justification for the prohibition on contingency-fee agreements was unintentionally revealing. To a modern observer, it illustrates how structural inequality is preserved through discursive control over what is a “real” grievance.35 Specifically, the court reserved unto itself, and by association the male participants in the divorce process, the right to name which marital issues were “real” enough to allow someone to exit that relationship.36 Courts did not treat the identification of “real”37 issues as a matter of fact-finding, which would have triggered traditional process-based protections for separating truth from fiction, such as the right to a full hearing on the merits or a jury verdict. For example, even during the nineteenth century, a jury might have concluded that forced intercourse was a sufficient basis to find cause for a divorce. Instead, judges made threshold determinations of what constituted real, and not “fanciful,” grievances, thereby preempting and short-circuiting the fact-finding process.38 By their very nature, these judicial fiats betray a deeper truth: What was at stake was not trivial or fanciful at all. So long as family-law doctrine assumed women to be too “vulnerable” and “emotional” to exercise independent judgment, the “natural order” of men’s hierarchical position over women was built into the framework of a case.39

The historical fault regime’s power to reify a patriarchal family structure may be located more in these largely invisible acts of reinforcement than in the substance of the factual question of fault. Where the husband consented to the divorce process, fault-based regimes imposed little barrier to actual divorce.40 On the other hand, where the husband wished to force his wife to remain in the marriage, he could wield the question of fault as a threshold barrier. On its face, fault was a “neutral” procedural rule, but in reality, the at-fault woman lost access to suit money, which closed the courthouse door to her. The “door was closed” because, before the case even started, a woman in this position would learn that the court thought so little of her position that she would receive no help to hire counsel. Certainly, as an unrepresented party with no money and no right to enter into a contingency contract, she would have little to no hope to change the predicted outcome of her case.41

In Parts II and III, I argue that this vestige of coverture, through the hidden power of process, has escaped modern constitutional scrutiny, preventing the full realization of fundamental rights associated with marriage.

II. Contingency-fee prohibitions from coverture persist without scholarly or logical support

Over the century that followed the Jordan case, feminists and their allies succeeded in liberalizing divorce rules to lessen the substantive restrictions on marital exit.42 However, in celebrating the theoretical end of coverture, courts and legal scholars have ignored the ways in which procedural relics and biases of the old regime still survive and impact economically dependent spouses of all genders.43

Of particular importance to this Essay, the impediments to financially dependent spouses accessing legal services on their own terms remain in place. As described above, financially dependent spouses must still ask the court for suit money because they are prohibited, by rule, from forming “contingency agreements” with divorce lawyers.44 At the same time, many states make it difficult for the dependent spouse to directly access any of their marital wealth during the divorce process, even though their marital assets are split in the end.45 The fact of title—that is, the name on an account or a property—generally controls use of liquid assets up until the time that judgment is entered.46 Therefore, dependent spouses must still convince judges that the claims they want to make are deserving of the legal resources that are necessary to voice them. The spouse with control over marital assets does not face these same limitations.

The current state of affairs raises the question: is the discriminatory policy rationale in support of the prohibition on contingency fees constitutional? Or has it somehow been redeemed by the passage of time, changes in society, narrowing of its impact, or the passage of other laws?47 The answer, simply, is no. Nothing has redeemed these rules.

First, in implicit recognition of its weak foundations, courts have chipped away at the outright prohibition over time with exceptions here and there.48 Nonetheless, it remains a largely universal rule.49

Second, when commentators carefully scrutinize the policy rationales for the prohibition on contingency-fee arrangements in divorce cases, they commonly recognize that the arguments are without logical or empirical foundation.50 For example, the most frequently repeated rationale is that a contingency-fee arrangement would induce attorneys to discourage reconciliation.51 But this does not make sense when compared to the alternative that is the current norm: hourly billing.52 If an attorney bills by the hour, then she will make more money by exacerbating conflict and spending as much of the marital estate on the conflict as possible.53 This is obviously not a path toward reconciliation and can have a devastating impact on the size of the marital estate that remains to be divided at the end of the litigation. In a contingency arrangement, by contrast, the attorney is incentivized to avoid unnecessary fights, to settle disputes quickly, and to protect the marital estate from being diminished by the litigation process.54

Third, to the extent that contingency-fee arrangements provide an economic incentive for lawyers to behave badly (just like hourly fee arrangements), this is not a problem that is unique to family law. After all, the potential for attorney misconduct underlies the American Bar Association’s rules of professionalism as well as state bar associations’ disciplinary proceedings.55Only in the family-law space do we take seriously the debunked reasoning that “emotional litigants,” which historically meant vulnerable wives, needed to be protected from the matrimonial bar in this specific
way.56 For example, litigants regularly contest rights to a limited fund or specific property—such as in partnership disputes, interpleader actions, and bankruptcy cases. In such instances, lawyer-client fee arrangements are as varied as the creativity of the participants.57The economics of such disputes can be identical to those in divorce cases because, as in divorces, it is a dispute over a defined res. For example, there are also numerous types of cases where one can assume that “clients are equally distraught [as in a divorce], if not more so,” such as in wrongful death or other types of tort cases.58 In those types of cases, relatively modest protections are typically used to protect the litigants from hasty choices, such as mandatory “statements of client rights,” which include mandated revocability periods with respect to the fee agreement, and/or a limited review of the fee for “fraud or overreaching.”59 Inherent in these more modest protections is an assumption not present in the family-law canon: Emotional litigants are capable of making rational decisions with respect to who they want to represent them and how they want to pay for it.

The overall picture that currently exists is fairly straightforward. Rules prohibiting contingency arrangements in divorce cases were adopted for expressly discriminatory purposes. There was no well-reasoned, nondiscriminatory explanation for the rules in the first instance. Now, discriminatory tropes of the past continue to pollute current discussions of the topic, often without notice. And, finally, the prohibition remains in place in most if not all states as a core part of the canon of family law, which thereby preserves and reinforces a unique legacy of the coverture regime.60 This is because victory over the coverture regime was declared much too early,61 and also because gender-neutral language in the family-law space masks profound inequalities that such rules can create.62

As set forth below, modern jurisprudence on fundamental rights associated with marriage makes this artifact of a discriminatory past vulnerable to constitutional challenge.63

III. the prohibition on contingency fees violates due process

Rules that arose from the coverture regime, including the family-law prohibition on contingency-fee arrangements, were designed to entrench inequality, both in terms of disincentivizing certain litigants from seeking access to the courts and ensuring inequitable outcomes. Because such rules are over a century old and appear facially neutral, they are often treated as a matter of “common sense” when, in reality, they are not.64 The question remains whether there is a viable path to effectuate change around these vestiges of the past.

To mount a constitutional challenge to these rules, one must dust off the foundations of modern jurisprudence on the fundamental right to marry. The recognition of a fundamental right to marry under the Constitution is of relatively recent origin—tracing back to 1967—but the recognition of the fundamental rights associated with divorce goes back to the foundations of the country, and beyond.65

The right to seek and obtain a divorce implicates what has been called a “due process trinity” of fundamental rights protected by the Due Process Clause of the Fourteenth Amendment.66 The first right is a person's “access to the judicial process [of divorce] in the first instance.”67 The second right is the choice to be free from the “constraints” and “legal obligations” 68 that go with marriage—to avoid a carceral application of marriage laws. The third right is the choice to remarry, which, of course, cannot occur until an earlier marriage is dissolved.69

In the early 1970s, in Boddie v. Connecticut, the Court addressed the intersection of the above three rights in a class-action suit against the State of Connecticut on behalf of women receiving state-welfare assistance.70 The named plaintiffs in the lawsuit, because of their limited means, were unable to afford the court fees and costs incident to a divorce proceeding, which, at the time, averaged $60.71 The cost, according to the plaintiffs, locked them out of the sole state-created means for divorce—a process the Court described as an “adjustment” of the “fundamental human relationship” that is “marriage.”72

In assessing the plaintiffs’ claims, the Court applied a balancing test: “[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.”73 It was a precursor to the Mathews v. Eldridge test for Due Process rights, one we might call the family-law version of Mathews.74

In terms of the fundamental right to access judicial processes, the Court differentiated divorce cases from ordinary civil cases on the basis that the State exercises a monopoly over the status of marriage: If access to the courthouse is closed, there is nothing that private parties can do to change their marital status.75 The Court cautioned against over-reading its opinion; it did not guarantee “access for all individuals to the courts”under the Due Process Clause. 76

Nevertheless, the interrelated fundamental rights of divorce and re-marriage qualified as claims of “right and duty;” the Court described them as rights of “substantial magnitude.”77 The Court held that the state’s machinery for “adjustment of [this] fundamental human relationship” needed to be operated in a manner that was not only “generally valid,” but also valid as it operated with respect to a “particular party’s opportunity to be heard.”78 In Boddie, the salient characteristic of the “particular party” before the Court was a lack of access to assets that, of course, was unrelated to “the seriousness of [her] motives in bringing suit.”79 The State’s countervailing interests, the prevention of “frivolous litigation” and the allocation of “scarce resources,” were not weighty enough to justify burdening the plaintiffs’ fundamental right to divorce.80

The Court in Boddie was careful to limit its decision to the “case before [it,]” but the basic balancing test it articulated was then employed in a line of cases related to the “rights and privileges inherent in family and personal relations.” 81 The framework that it utilized can therefore be applied to the present issues.

When the above balancing test is applied to the ban on contingency fees in family law, the rule does not withstand scrutiny. In terms of weighing “the character and intensity of the individual interests at stake,”82 it would be easy to suggest that the ban on contingency fees is a minimal burden because people have other options, including “suit money” or representing themselves pro se. Indeed, there is not a recognized overarching right to counsel in divorce cases, so stopping certain types of fee arrangements would seem to be a lesser burden than providing no counsel at all.83 But this approach is ahistorical.

As set forth in Part I, rules designed to limit access to counsel in the context of family law were not a solution to discrimination and inequality; rather, they were a pillar of the discriminatory system in the first place. This fact, which could be referred to as an equal protection concern, can and should be taken into account when weighing the State's purported interests in maintaining such rules.84 As the Supreme Court recently stated, “[t]he Due Process Clause and the Equal Protection Clause are connected in a profound way . . . [and while] [r]ights implicit in liberty and rights secured by equal protection may rest on different precepts . . . . in some instances each may be instructive as to the meaning and reach of the other.”85

The above proposition, that due process and equal protection principles interrelate, is something that “feminist proceduralists” have recognized for a long time.86 They have argued that, with respect to procedural rules, scholars “must consider how women actually fare as litigants, and whether rules of evidence and procedure respond to the documented disabilities that women still face.”87 In this instance, a rule was designed to create unequal access to counsel for women and it continues to do so for economically dependent spouses of all genders. It is a weapon against equality and fundamental fairness reserved for divorce cases and it endangers the “trinity” of fundamental rights that they entail.88 Notably, and consistent with the arguments in this Essay, an unbalanced playing field in family cases is of such constitutional import that the right to state-appointed counsel has been recognized in an increasing number of family law contexts.89 Therefore, it is difficult to understand how a rule designed to enhance inequality and unfairness in this space could survive.

The other side of the Due Process balancing test is the state’s interest in maintaining the ban. Part II of this Essay showed that courts and commentators often repeat the nineteenth-century justifications for the ban, even though the ban was invented for discriminatory and subordinating purposes.90 This is no justification at all. Even in the absence of discriminatory tropes about “emotional” litigants, the purpose of “discouraging divorce” by limiting access to counsel is not “a countervailing state interest of overriding significance.”91 Further, the use of unfairness, an unequal playing field, and/or inequality to incentivize forced companionship by economically dependent spouses is not the same thing as promoting love and stability in marriage.92 As the Supreme Court has recognized, it is more akin to a direct constitutional injury to individual autonomy.93 Finally, as to the desire to avoid litigation over “fancied grievances,” which would today be described as “frivolous” divorce cases, the prohibition on contingency fees does not address that end. Once again, the Boddie Court faced this same argument and, in rejecting it, the Court held that such problems have solutions that specifically address them, such as “penalties for false pleadings or affidavits, and actions for malicious prosecution or abuse of process.”94 Because these solutions already exist, the state’s purported justification does not have “overriding significance.”95

Notably, it is not just concepts like freedom, dignity, love, and self-realization that are at issue.96 Some of the inchoate rights that accompany marriage, which have motivated the Supreme Court’s recognition of its “fundamental importance for all individuals,”97 vest upon divorce, and the distribution of assets that attend these events. As just one key example, in equitable-distribution states, the property rights attendant to “marital” property remain unvested until a divorce decree is entered, meaning that, up until that date, there is a danger that the dependent spouse’s one-half interest could be transferred or dissipated, particularly without effective representation. Thus, the ban on contingency fees makes the economically vulnerable party even more vulnerable, all in the service of discouraging an economically dependent spouse from seeking a divorce. The use of the power of the state to help the affluent impair the autonomy of their less affluent counterparts has the ring of coverture, and worse.

Conclusion

Family law is not necessarily unique in the issues it is asked to address, particularly with respect to economic disputes. If a rule restricting attorney-client relationships could not be justified in related fields of law, such as in partnership disputes, it should not be permitted in family law. The concerns about “emotional” and “vulnerable” clients that justify family law’s sui generis restrictions are, at their core, the same discriminatory impulses that drove long-rejected sex-based restrictions on women’s rights to contract and own property generally.

The ills of the past—where courts used economic dependency as a proxy for mental and emotional incapacity—need not be revisited on any party to a marriage, whether the problematic marriage involves a same-sex couple or a marriage where a husband is dependent on a wife. Economic dependency is not a basis for treating anyone’s decision-making capacity with less respect and dignity than that of a person with independent resources.98 Restrictions on contingency and alternative fee arrangements in family law therefore fail constitutional scrutiny.

I would like to thank Raleigh Cavero for her creative ideas, research support, and general encouragement throughout the process. I would also like to thank Lili Timmermann and Alexander Nocks for their help on all aspects of this Essay.