Who pays? A tutorial on fee-shifting in divorce cases

While outlining a five-factor framework for domestic relations fee shifting, a Fairfax County judge nonetheless decided this month that the factors weighed against any fee award in a high-profile divorce case.

Judge David A. Oblon found a gap in legal authority to guide trial courts in the routine but important responsibility of awarding attorneys’ fees, so he offered his own list of elements for divorce fee-shifting decisions.

In the case of Albert and Lisa Dwoskin, the wealth of the parties combined with other factors in their divorce led Oblon to reject the fee petitions of both husband and wife.

Oblon’s eight-page, March 5 opinion is Dwoskin v. Dwoskin (VLW 021-8-038).

Guidance lacking

The Dwoskin divorce produced two prior circuit court opinions focused on the couple’s antenuptial agreement. Stung by the complications of a second divorce, Washington real estate developer Albert Dwoskin had sought to both prevent another legal battle and protect his $25 million net worth when he married third wife Lisa in 1988.

This latest opinion to analyze the Dwoskin marriage offered an opportunity to review the law of divorce fee shifting in Virginia. Oblon said judges are accorded broad discretion with no statutory scheme and only four circumstances warranting reversal.

Citing those reversals, Oblon said a trial judge’s discretion is abused when the judge fails to consider the parties’ relative financial positions, when a judge reflexively awards fees to the prevailing party, when a judge uses fees to punish a party and when a judge criticizes a party’s inability to correctly predict the judge’s ruling.

“The Court herein attempts a compendium of non-exclusive factors any court may want to consider in exercising its broad discretion to award attorney fees,” Oblon wrote.

Oblon’s factors are:

• The financial positions of the parties,

• Whether a party unnecessarily increased the cost of litigation to the other,

• Fault in the dissolution of the marriage,

• Public policy considerations, and

• Any other factors necessary for a reasonableness ruling under all the circumstances.

Financial positions

A prime reason for fee shifting is to put the parties on equal footing, Oblon said. “Money should not deny one party access to the court,” he said.

“At one time it seemed an award of spousal support mandated an award of attorney fees to the payee spouse,” he observed. “However, the Court of Appeals has long held that was not the intended rule.”

Increasing costs

Obvious examples of unnecessary cost inflation are discovery violations, refusal to meet and confer and “rushing to the courthouse for the smallest of matters,” Oblon said.

“Harder examples include harassing motions practice. Of course, one lawyer’s aggressive motions practice is another lawyer’s harassment. It is not the place of courts to chill legitimate motions practice. However, some litigants cross the line and courts can recognize it when they see it,” Oblon wrote.

Also blameworthy is a party’s unwillingness to negotiate in good faith, the judge said.

Public policy

Oblon proposed examination of the cost-benefit choices made by the parties. When someone feels the other party will ultimately pay the fees, “then money is no object, and there is no reason to make any cost consideration,” Oblon said. “This is bad public policy. Courts have power under this factor to introduce economic reality.”

The amount of fees awarded, while not an issue in the Dwoskin divorce, is a decision with clear guideposts for judges, Oblon said. He found “well-established” factors for a court to consider in ensuring fees are reasonable, including the time and effort expended, the nature and complexity of services rendered and the value to the client.

Applying the factors

In the case of the Dwoskins, the parties’ financial positions made it equitable for each to bear his or her own fees, Oblon concluded. Both are multimillionaires, he said.

“They each can clearly afford the fees without an unfair effect on their lifestyles,” Oblon wrote. “The fees are a very small percentage of each party’s wealth when one considers the scope of the resolution each sought in this trial.”

David Masterman of McLean testified as an expert on behalf of Lisa Dwoskin, suggesting the court consider the wealth-to-fee ratio.

“To be clear, there is no rule that wealthy parties must always bear their own attorney fees, and the Court does not apply such a rule here. However, it is one factor the Court does weigh heavily in this unique case,” Oblon wrote.

Addressing whether either party unnecessarily increased the cost of litigation for the other side, Oblon concluded both parties were guilty. The husband commissioned an antenuptial agreement from “a lawyer whose practice did not really focus on family law in Virginia.” The ambiguity of the resulting contract and the husband’s foot dragging on support payments led to protracted litigation, Oblon said.

“On Wife’s side of the ledger, she took Husband’s effective invitation to challenge the antenuptial agreement with gusto,” the judge said. “She challenged the validity of the contract twice and the interpretation of it once.”

No fault issues

Fault in the failure of the marriage was not an element, Oblon concluded. He cited a December 2020 opinion indicating the marriage foundered as the wife adopted causes and political views that the husband disagreed with.

“[N]ot everyone can maintain a James Carville-Mary Matalin marriage,” the judge observed.

Public policy and other equitable factors also weighed against a fee award, Oblon said.

“Where, as here, both parties had the motivation and resources to prosecute and defend the case to the degree they did, equity suggests a ruling that each pay their own way,” Oblon said.

“Each party picked outstanding lawyers who truly impressed this Court with their unusual skill and who added significant value to each party in different ways that they may or may not have internalized,” Oblon wrote.

Albert Dwoskin is represented by Matthew W. Edwards and Sarah E. Mancinelli of Washington. Lisa Dwoskin is represented by James R. Cottrell of Alexandria.

Edwards said the opinion will be “enormously helpful” to family law practitioners.

“The Court’s comments regarding the ‘power . . . to introduce economic reality’ in litigants’ strategic decision-making are particularly helpful. The result in this case was very fair to both sides,” Edwards said.

 Cottrell declined to comment, saying the case is still pending.