However, for many couples, you and your partner are simply unable to come to an agreement through alternative dispute resolution, making litigation inevitable. In these cases, one spouse may be worried about how they will be able to pay for an attorney, especially if their spouse has significantly more income. There is some good news for you as there is a remedy available to you to help mitigate for the costs and fees you have had to pay your attorney throughout the process.
Thankfully, one does not have to be indigent to be awarded counsel fees during a divorce proceeding. This is not akin to being granted the right to counsel as you would in a criminal matter, rather the main purpose is to avoid one spouse being taken advantage of by the money and power of the other. It simply seeks to even the playing field as much as possible during a difficult time.
How Are Counsel Fees Awarded?
New York’s Domestic Relations Law, which is what is used in Nassau County and Suffolk County courts, was amended in 2010. Prior to those amendments, the party seeking counsel fees had the burden of establishing that justice required he or she be awarded said fees. With the relevant amendments however, a presumption has been created that the less monied spouse is awarded counsel fees. In order to satisfy this burden, both parties to the action are directed to file affidavits detailing the financial agreement between the party and the attorney, including any retainer, hourly fee charged, and amounts paid or due, and a statement of net worth which details the party’s income and all expenses. While parties are entitled to counsel fees for expert witnesses, it does not seem that the presumption of granting such to the less monied spouse is applicable to those fees.
For Which Actions Are Counsel Fees Available?
New York’s Domestic Relations Law § 237 provides that counsel fees may be awarded in an action for an annulment, separation, divorce, or certain actions relating to marriages or divorces obtained outside of the jurisdiction of New York. As always, this is not an exhaustive list and you should check with your Long Island divorce attorney to determine if you may apply for counsel fees for your court action. Additionally, this presumption is applicable to any action brought for modification of a separation agreement or judgment of divorce; which can include child support or spousal maintenance payments.
Is This Available After the Final Judgment?
The presumption that the non-monied spouse is entitled to counsel fees is applicable only to relief requested during the course of the litigation. Therefore, you must file your application before the final judgment of the action.
How are Awards for Counsel Fees Determined?
Notwithstanding the presumption of awarding counsel fees to the less-monied spouse, the monied spouse has the opportunity to rebut that presumption. The court will look to the income of both parties, the necessity of the legal services, whether one party has dragged his or her feet and caused counsel fees to be greater than necessary, how complex the litigation was, and whether the amount requested is reasonable. Therefore, while the presumption placed in Domestic Relations Law § 237 favors the less monied spouse in the award of counsel fees, the monied spouse can point to a variety of factors to defend against this.
What Does This Mean for Me?
If you are the less-monied spouse it is important to submit your statement of net worth and all relevant affidavits proving your financial relationship with your Long Island divorce attorney. Failing to do so will cause the court to look disfavorably upon you and may affect the court in its decision on whether or not to award you counsel fees.
On the other hand, if you are the monied spouse and seek to avoid paying a large sum of counsel fees to your partner, you should keep track of all legal action taken by your partner. While it is rare that an attorney will file motions or drag his or her feet just to harass or annoy the opponent, it is not unheard of for a client to refuse to reasonably cooperate. While negative for your partner, this may be beneficial to you as courts will look at this as a reason to not award counsel fees.
Need Help? Contact the Experienced and Compassionate Long Island Divorce Attorneys at Robert E. Hornberger, Esq., PC
The experienced and compassionate Long Island divorce attorneys at Robert E. Hornberger, Esq., PC work with their clients to keep their fees as reasonable as possible. We consult with our clients to investigate alternative dispute resolution programs that can keep your costs, and stress, as low as possible. We also offer excellent financing programs to ensure you can afford the best representation available. Should you need assistance of the courts, we are here to help prepare your case for Nassau County or Suffolk County courts. Contact us today at 631-910-1910 for a free consultation to discuss the specifics of your case and how we can help you with the best, most affordable representation.