How Will I Pay for My Long Island Divorce?

by Robert E. Hornberger, Esq | Sep 9, 2014

Litigating your Long Island divorce can become a long, costly drawn-out affair, so most good Long Island divorce attorneys will attempt to help you avoid the time and money associated with litigation in Nassau County or Suffolk County court through alternative divorce methods such as Divorce Mediation or Collaborative Divorce.

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.

Long Island Divorce Lawyer Offers Keys to Settling your Divorce Case

by Robert E. Hornberger, Esq | Jul 29, 2014

As a Divorce Lawyer on Long Island, I have helped many individuals through the process of divorce litigation and many couples through the process of divorce mediation or collaborative divorce law in order to settle their divorce cases. While many individuals or couples getting divorced believe the only option is to fight to win or prove a point, eventually most divorce cases settle.

In my experience, I have observed the following common keys to settlement of divorce cases on Long Island:

1. Know Your Goals: In a divorce case, obtaining a divorce is always a general goal, but, you also need to determine your specific goals for yourself and your family. A goal isn’t just, “I want the house,” it is more abstract than that. You need to understand the “Whys” of your goals. I want the house can mean “I want a sense of security,” or, “I don’t want our children to be forced to move.” Goals are very rarely about objects or things. Goals are statements about our desires. You will be best served to write down your goals for yourself and your children because if you don’t, it is just a thought. Writing it down gives your thoughts meaning once you understand the “Whys” behind it. Once you have written your goals down, you can work with your divorce lawyer to develop a plan to achieve those goals. There are many methods to achieving your divorce on Long Island and understanding your goals and objectives will go a long way toward determining the best, most practical method of achieving your divorce. Some goals are better achieved through divorce litigation, but, if you and your spouse share common goals regarding your children, then, settlement is probably your best option. If you and your spouse can agree upon your goals, you might be best served with an alternative dispute resolution process like divorce mediation or collaborative divorce.
2. Know the Law: Knowing the law is key to formulating a good settlement. Clients often ask me, “How do I know whether a settlement is good without knowing the law?” The law is an important factor in developing a settlement, but, it should not be the deciding factor. What I mean is that if you want the resolution of your divorce case to mirror “the law,” then you can simply have a trial and let the judge make the decision. The judge is bound to follow the law, but when you and your spouse negotiate your own settlement, you can pick and choose what aspects of the law to follow and others from which you want to deviate in order to achieve the best resolution for you and your family. On Long Island, divorce cases are governed by the New York State Domestic Relations Law.

There are 3 Main Elements to Resolve:

• Custody and Visitation of Children.
• Support of the children and/or a spouse.
• Equitable Distribution of Assets.

The main principle which governs custody and visitation is the best interests of the children. Support of children is governed by the Child Support Standards Act which provides a formulaic way of calculating child support. There is no formula for calculating spousal support upon the conclusion of a divorce case it is governed by 20 statutory factors. Finally, distribution of marital assets and marital debts are governed by the Equitable Distribution Law which basically guides courts in determining a fair distribution of assets and debts. Fair does not necessarily mean equal.

3. Know How to Compromise: A wise Long Island Divorce judge often told litigants that a good settlement in a divorce case was like dining at a fine French restaurant: the meal tasted good, but on the way home, you need to stop for a sandwich because you are still hungry. A good settlement is much the same: some aspects taste good to you, but, you are still craving more. If your spouse feels the same way, then, the settlement is probably fair. In other words, no one gets everything they want from a fair divorce settlement. You have to give a little to get a little. A good settlement would not leave one spouse completely happy and the other upset and feeling taken advantage of. When both individuals feel they got what they needed, but not everything they wanted, then the settlement is probably fair. Another way of saying this is you are probably not going to get everything you want. You may be thinking “Why is my divorce attorney saying this?” I tell clients that I am saying this because it is true. If you both want the house or custody of your children, someone is going to lose, but, if you settle and compromise, you might find a way for both of you get something you want without feeling as though you have lost everything.

4. Know When it is Time to Move On: Divorce is not easy and brings with it a wide range of emotions. Sometimes individuals fight during a divorce to prove a point to the other side. But, standing on your principles can come at a cost. The practice of divorce law is an hourly practice just for this reason. Your divorce lawyer has no idea how long your divorce case will take to resolve. One hour, 10 hours, 100 hours, etc. – it all depends upon you and your spouse and how willing you are to negotiate. Also, the Divorce Courts on Long Island are over worked; there are simply not enough judges for the number of divorce cases waiting to be heard. So, if you wish to battle to prove a point, plan on spending 10s of thousands of dollars and possibly years of your life. If your divorce case lasts two years and you live to be 80 years old, that means you would have spent 2.5% of your life fighting against one individual. Is that how you want to spend your life. Life is too short, let your divorce lawyer help you make calculated decisions so that you can find a fair compromise and settle your case so that you don’t spend your future and needless years of your life fighting in court. Also, if your divorce lawyer seems more interested in fighting with your spouse or the other attorney than you are, it is possible that your divorce lawyer is looking to play your emotions into a long drawn out divorce case to make more money. Don’t become a victim in that regard either. Your divorce lawyer is supposed to be working for your interests, not his or her own. Always remember that you are allowed to change divorce lawyers during your case if you are not happy.

Practical Insight from a Long Island Divorce Lawyer

I hope that sharing the insight I have gained as a practicing divorce lawyer on Long Island helps you reach a fair and amicable settlement of your divorce case. If you have any questions regarding the unique circumstances of your divorce case please contact our office at 631-923-1910 to schedule your free consultation.