NEW YORK (Reuters) - When big dollars are at stake in a divorce settlement - a situation faced by billionaire oilman Harold Hamm after his headline-grabbing breakup - the litigation tends to drag on for months, if not years.
But a protracted court battle is expensive and may seem unaffordable for the “less moneyed” spouse divorcing an estranged partner with deep pockets.
That’s why a mini-industry has emerged to help finance the legal costs of breaking up with someone wealthy enough to make a long court fight worth the upfront expense.
“One of the first tactics a spouse will do to get the other to wave the white flag is run up legal fees against the other,” says Brendan Lyle, chief executive of BBL Churchill, a New York firm that specializes in divorce financing.
“It builds pressure on the other spouse when one can drop $40,000 on court costs without breaking a sweat and the other can’t. We’re in there to help alleviate that problem.”
Divorce financing is a relatively new field, emerging in the United States around 2009. It is a small subset of a growing industry that gives access to third-party funding to prospective litigants that can’t afford to fund their cases on their own.
The size of the wider field is hard to peg because only two companies are traded publicly - Juridica Investments Ltd and Burford Capital Ltd - although a myriad of other financiers are in the business.
“It’s just a fraction of cases that receive funding, but it is expanding dramatically,” say Maya Steinitz, an associate professor at the University of Iowa College of Law in Iowa City, Iowa.
Among firms that specialize in divorce, BBL Churchill loans money to clients, usually after receiving a retainer of $10,000 to $15,000.
“Most of our clients are wives of doctors, or husbands of doctors, hedge fund managers and finance company managers, accountants and accounting partners,” BBL’s Lyle says.
Balance Point Divorce Funding, based in Beverly Hills, California, takes a different approach. It doesn’t loan clients money, but structures agreements as investments in the outcome of the case.
“With a loan, you have an absolute obligation to repay and there could be scenarios where the lender gets more than the client,” founder Stacey Knapp says. “We are in tandem with the client.”
Balance Point started in 2009 with funds from Knapp’s own divorce settlement. Now Asta Funding Inc, an asset management company in Englewood Cliffs, New Jersey, backs the firm.
When Churchill started, also in 2009, the firm fielded one application every two weeks, Lyle says. It now it gets about five a day.
His company is currently backed by Three Hills Partners - comprised of private equity from Jon and Steve Sabes of Minneapolis and Patrick Preece of Greenwich, Connecticut.
Divorce financing companies do a significant amount of underwriting - research to calculate the client’s chances of prevailing and whether the potential settlement is worth the time and resources.
“We understand that there are limits to what we do and we are trying to make sure that all of our loans come through,” says Lyle.
Both Churchill and Balance Point step in only when the client has exhausted other avenues. Many first try to get their own lawyers or financial management firms to back the case, or ask the opposing party with deep pockets to pay the legal fees.
The money the firms provide pays attorney costs and other expenses, such as bringing in a forensic attorney to testify on the client’s behalf.
The typical loan at Churchill is $250,000 and, on average, it takes 14 months to pay back.
Each case is different, says Lyle, but the interest rates are akin to credit cards, usually 16 to 19 percent.
The most expensive loan to date that BBL Churchill has financed was $800,000 and the lowest amount is $25,000.
Knapp, on the other hand, makes smaller investments and will refer clients who need more to Churchill.
Her company does not require clients to put up any money as a retainer and all of her potential clients must vet the investment agreement with an independent attorney who has no tie to the case.
“The risk-reward analysis needs to be done, to make sure the loan makes sense,” says Lisa Hanson, a Philadelphia-based financial adviser who specializes divorce financial planning.
“You’d want at least $500,000 in your settlement and it seems like typically you’d be looking at a marriage that has at least $4 to $5 million in marital assets. And it really should only be done if you have no other options.”
Rosemary Frank, a Brentwood, Tennessee, financial adviser, prefers that her clients borrow on an already-open home equity line of credit or use funds from the marital estate to pay for a divorce.
She also recommends borrowing against a non-retirement portfolio, using the investments - stocks, bonds, mutual funds - as collateral.
But sometimes that simply is not enough to foot the bill, Knapp says.
“Litigation funding levels the playing field,” she says. “Money is the great equalizer. It means you had a shot.”