Can a lawyer take a contingent fee to collect unpaid alimony arrears after a divorce judgment?

Plain-English summary

The inquirer asked whether he could represent a prospective client, on a contingent fee, to recover post-judgment alimony arrears. The divorce judgment had been entered in the Superior Court in 1983, the debtor ex-spouse lived in New Jersey, and the alimony amount had been fixed by the original divorce judgment; the contemplated action sought only the arrears.

The Committee quoted RPC 1.5(d)(1), which bars a fee in a domestic relations matter whose payment or amount is contingent on securing a divorce or on the amount of alimony, support, or property settlement in lieu thereof. It concluded that the Rule does not preclude the contingent fee here, because the contemplated action relates to recovering post-judgment alimony already determined, and does not seek the initial determination of alimony or support that RPC 1.5(d)(1) prohibits.

Currency note

This opinion was issued in 1988, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does the ban on contingent fees in domestic relations matters cover collecting alimony arrears?

A: Per the opinion, no. RPC 1.5(d)(1) bars a fee contingent on the initial amount of alimony or support; collecting already-determined arrears falls outside that prohibition.

Q: Why does the timing (post-judgment) matter?

A: Because the alimony amount was already set by the divorce judgment, so the contingent fee is not tied to "securing" a divorce or to the "amount of alimony or support" being determined.

Background and rules framework

The opinion construes NJ RPC 1.5(d)(1) (Model Rule 1.5(d)), which prohibits contingent fees in domestic relations matters where the fee turns on obtaining a divorce or on the amount of alimony, support, or property settlement. The dispositive distinction is between fixing alimony (prohibited) and collecting alimony already fixed by judgment (permitted).

Citations and references

Rules of Professional Conduct:

• MR 1.5 / NJ RPC 1.5(d)(1) (contingent fees in domestic relations matters)

See also

• NJ ACPE Op. 644: Nonrefundable Retainers
• NJ ACPE Op. 663: Purchasing a Client's JUA Judgment at a Discount

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp618-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

122 N.J.L.J. 1246, November 10, 1988

OPINION 618

Contingent Fee for Recovery of Post Divorce Alimony Arrearages

The Inquirer asks whether he may represent a prospective client who desires to retain him, on a contingent fee basis, to recover post-judgment alimony arrears. The judgment of divorce was entered in the Superior Court of New Jersey in 1983, and the debtor ex-spouse resides in New Jersey. The amount of alimony was determined by the original judgment of the divorce, and the contemplated action seeks recovery of the arrearages.

RPC 1.5(d)(1) provides:

(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;... .

We are of the opinion that the foregoing Rule does not preclude the contingent fee representation, since the contemplated action is related to post-judgment alimony, and does not seek the initial determination of alimony or support, which is prohibited by RPC 1.5(d)(1).