How Do Nassau County Divorce Courts Handle Attorney Fees Following Legal Separation?


Until “no fault” divorce became possible in the state of New York in 2010, couples wishing to file for divorce typically went through a process that included a period of separation prior to the actualfiling of a summons for divorce. Although legal separation is no longer technically required in New York, some couples still choose to follow this procedure or sign a separation agreement, in order to make sure all the issues are settled, and then immediately file for divorce on the no fault grounds without waiting.

Spouses who enter into a period of formal separation must do so through a written separation agreement, which addresses financial issues such as temporary child support and pendente lite spousal maintenance (aka “alimony”) while the parties are living separately.

The New York State Unified Court System’s website defines a separation agreement as “a written agreement on … spousal maintenance payments… and related issues. This agreement must be formally signed and acknowledged and covers the period before divorce but after the separation.” A separation agreement is a binding contract. Unless one of the parties is able to attack the agreement or a certain provision thereof in a separate, plenary action (a lawsuit filed outside the divorce court proceedings) on grounds such as fraud, duress, or unconscionability, the spouses are bound by its terms.

For example, if a couple enters into a separation agreement in which they agree on the amount and duration of spousal maintenance, they will be held to that agreement unless one of them can convince the court that the agreement is invalid because the maintenance payments are so low (or so high, depending upon which spouse initiates the action) as to be unconscionable. The term “unconscionable” is a legal term that is, at least to some degree, subject to interpretation by the trial court judge in a particular case. A certain amount of support might be acceptable in one case but not in another, depending upon the obligor spouse’s ability to pay and the obligee spouse’s financial needs. It all comes down to basic fairness and equity between the parties.

The couple in this example might even go as far as to put a term in their separation agreement to the effect that, if either spouse requests a modification of the agreement but is unsuccessful, that spouse will be required to pay the other’s attorney fees and costs in defending the modification attempt. Again, unless the losing spouse can convince the court that this provision is unconscionable under the circumstances of his or her particular case, he or she is bound by the terms of the separation agreement.

An interesting question might arise if this “example couple” proceeds to divorce at some time after the expiration of spousal maintenance payments as stipulated in the separation agreement. If a spouse asks the divorce court to extend the maintenance payments because he or she has not yet found employment, but the court refuses to order additional maintenance payments, will the divorce court be obligated to order the losing spouse to pay the other’s attorney fees, even if there is a large income disparity between the couple?

The answer to this question depends upon several case-specific factors. Assuming that the separation agreement is deemed valid (rather than being set aside as unconscionable), the court will look at whether the agreement was intended by the parties to end at the time the divorce was filed (in which case a prior agreement about the payment of attorney fees in an action for maintenance is probably not binding on the divorce court) or whether it was written in a way that it merges with or survives the later-filed divorce action. In such a situation, it is possible that the court may impose the attorney fee provision. However, the divorce court could decide that, insofar as temporary maintenance and permanent maintenance are separate issues, the separation agreement is not binding on the issue of attorney fees in the divorce action.  Other results are possible as well depending on the facts of the case and how the judge sees them.

Contact an Experienced Nassau County Divorce Family Law and Mediation Attorney

Many issues can arise when a marriage ends, and the decisions that are made (whether by the spouses themselves or by the court) can have a long-term financial impact on one or both parties. Since so much depends upon the terms of documents such as separation agreements and divorce decrees, it is critical to speak with an attorney who is well-versed in New York domestic relations matters if you are going through a separation or divorce. To talk to experienced Nassau County divorce attorney Darren M. Shapiro, P.C., about the protection of your legal rights and financial well-being in a New York or Long Island divorce case, call us at (516) 333-6555 and ask about our free initial consultation.

Related Blog Posts:

Can a Divorce Court Order Temporary Alimony and Living Expenses?

Lawyer Fees in Divorce and Matrimonial Cases

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