Lawyer Fees in Divorce and Matrimonial Cases

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According to the New York Domestic Relations Law, as part of a matrimonial case, such as for divorce, annulment, separation, or obtaining maintenance or equitable distribution following a foreign divorce judgement, the court may award counsel fees. In New York proceedings it is well established that the Court in domestic relations cases has the discretion to award fees depending on the parties’ circumstances, the merits of each sides positions and the complexities involved in the particular case.  As part of a post nuptial agreement, pre nuptial agreement, separation agreement, or stipulation of settlement of a divorce, often times a provision is included about future payment of the other side’s counsel fees by the party that takes a non meritorious position.  In those situations the court will usually seek to enforce the terms of the parties agreement regarding counsel fee applications.  The balance of this blog is about cases that are not covered by counsel fee clauses.

The underlying purpose and rationale behind many counsel fee awards is to make sure that a “needy” spouse has the ability to defend themselves, or carry out legal actions in court. Through counsel fees, the New York court is able to situate both spouses on an equal economic footing when it comes to using legal help and carrying out court proceedings. What’s more, these fees can help to ensure that during litigation, both spouses have equal leverage. The Supreme Court of New York may deliver an order to either spouse involved in the case, requesting them to directly pay counsel fees to an attorney for the other spouse, so as to enable that spouse’s continued participation in the case.  Courts can consider:  type of services rendered; the actual time used; the professional experience and reputation of the counsel; and the respective financial situation of each side.

When it comes to understanding the concept of the court exercising its “discretion”, it is useful to know that a court might explore the financial resources, including income, assets and otherwise. Usually, at the beginning of a divorce case, a motion can be filed, under appropriate circumstances, lawyer fees in divorces, pendente lite (Latin for while the case is pending).  These are also commonly known as an application for temporary counsel fees or interim counsel fees.   Counsel fee applications are also commonly made at the end of a case.

Although it is important to ensure each party has reasonable representation, the application for awarded expenses and fees can be made at any point, by either party up to the point of a final judgement being made. Both parties involved within the proceeding and their attorneys will need to use an affidavit in detailing to the court the agreement that has been made between counsel and the party. Generally, an affidavit in these circumstances should involve all of the necessary information required, such as the amount of a retainer, amounts to be paid, and any hourly amounts charged by an attorney. The documentation may also include information about any additional costs, amounts to be paid to experts, and expenses or disbursements.

“Expenses”, in these circumstances, may be defined in a number of different ways. For instance, expenses may include fees for appraisals, accountants, investigations, actuarial, and other fees that are determined to be necessary by the court. The law of New York also provides that the court may choose to direct a parent or spouse to pay counsel fees during a proceeding to annul or modify an order for maintenance or custody, visitation, or child support. Most typically, counsel fees become a common issue during enforcement proceedings. Enforcement proceedings refer to any action that takes place as a result to obey an order given under the law to pay maintenance or support or to enact equitable distribution terms.

The “expense” section of the law can be difficult to understand. On at least an interim basis, courts are generally more likely to award counsel fees in original matrimonial proceedings, as opposed to modification proceedings. Importantly, being destitute or poverty stricken is not a requirement for legal fees to be awarded. Using discretionary authority, the court must be able to review both of the financial circumstances of each party involved in the proceeding, along with the various circumstances of the case in question – including the relative merit of both parties. Whether the court chooses to award a counsel fee amount or not is a matter of discretion. Counsel fees are supposed to “level the playing field” to prevent a more affluent spouse from financially punishing the opposition, or creating an unfair scenario in court.

When determining a pendente lite, or temporary (interim) counsel fee award, the Courts should apply a presumption that counsel fees typically are to be awarded to the less affluent spouse, according to section 237 of Domestic Relations Law. In all matters following October 12, 2010, this area of law provides that, according to the court’s discretion, it is crucial to ensure that each party be adequately represented, and fees must be awarded on a timely basis, prior to the final judgement. What’s more, it is understand that a temporary award of counsel fees should be designed to prevent a more affluent spouse from overwhelming the other party based completely on financial strength.  Parties should be wary; however, often times the counsel fee award is not equivalent to the fees spent in seeking to obtain the award.  Each case should be analyzed as there are arguments to be made in favor of each side.

In some cases, the court may choose to regard the fact that a particular party involved in the case has made protracted litigation necessary, when determining whether to award counsel fees or not or how much the fee award should be.  As such, the New York court will need to take numerous factors into account when determining whether counsel fees should be awarded, including the merits of the parties’ positions.

If you would like more information about dealing with the various aspects of divorce and family law, please feel free to browse our available web pages and blog entries for more details and answers. At the same time, please always feel free to call us about your free, initial consultation. It would be our pleasure to speak with you about it.