Attorney Fee Awards in Divorce Actions under Domestic Relations Law 237
By J. Douglas Barics
Updated October 2019
In matrimonial actions, the court is authorized to award counsel fees under DRL 237. This is a statutory exception to the general rule that each party is responsible for their own legal fees, as absent statutory authority, there is no basis for counsel fee awards. Domestic Relations Law 237 intent is to equalize the availability of counsel to both spouses to prevent one spouse from having an unfair advantage in a divorce due to a financial advantage.
Matrimonial Actions which Authorize Counsel Fee Awards Under DRL 237
Matrimonial actions are defined under DRL 236 B (2)(a). DRL 237 applies to some of these actions.
DRL 237(a) authorizes attorney fees in the following matrimonial actions:
- An action for an annulment
- An action for a separation
- An action for a divorce
- An action for the declaration of the validity or nullity of a foreign divorce
DRL 237(b) authorizes counsel fees for the following matters:
- Any action to annul or modify maintenance
- Custody proceedings
- Visitation proceedings
- Child Support proceedings
DRL 237(c) under the following matters, an award of counsel fees is mandatory if there is a finding willful disobedience:
- An action or motion to enforce an order of child support
- An action or motion to enforce spousal maintenance
- An action or motion to enforce a distributive award
Pendente Lite Counsel Fees under DRL 237
DRL 237 authorizes an award of counsel fees both in the final judgment, or by one or more orders from time to time before the final judgment. Many times it would be grossly unfair to have the less affluent spouse wait until the conclusion of trial to be awarded fees. As such, a pendente lite motion for counsel fees is authorized under DRL 237.
All requests for pendente lite attorney and expert fees must contain the following information:
- A signed statement net worth
- A copy of the retainer agreement if represented
- The attorney must disclose if anyone else promised to pay legal fees. See 22 NYCRR 202.16(k)
- The failure to disclose a statement of net worth and retainer agreement will result in the court drawing a negative inference.
An unrepresented party seeking an award of counsel fees to obtain a lawyer is not required to submit a retainer agreement or affidavit of anticipated services under the 2015 amendments to DRL 237.
Factors in Determining Counsel Fee Awards
In awarding counsel fees, it is not necessary for a spouse to be indigent to qualify for legal fees. See DeCabrera v. Cabrera-Rosete. Nor must a spouse exhaust all of his or her resources before a court will award fees. Instead, the basis is to level the playing field between the spouses.
A determination to award counsel fees is at the discretion of the court. In exercising this discretion, the courts traditionally considered the following:
- Whether one spouse has substantially more income and assets than the other
- Whether or not the legal services were necessary
- Whether the amounts requested are reasonable under the circumstances
- Whether the monied spouse is better able to pay the fees
- Whether the monied spouse is responsible in making the fees larger than they should have been
- Whether any litigation was made in good faith or whether claims were made solely for use as bargaining chips
- The value of the services rendered
- The standing of the attorney and nature of services
- The complexity of the litigation
- The results obtained by the attorney
- The customary and ordinary legal fees normally charged by the legal community as compared to the requested fees
- The time spent making an application for legal fees may be included in an award of lawyer fees. See O'Shea v. O'Shea 99 NY2d 187 Court of Appeals 1997.
Domestic Relations Law 237 creates a reubuttable presumption of an award of counsel fees by the monied spouse to the non monied spouse. This presumption means it is the burden on the monied spouse to show why an award of counsel fees is not appropriate. However, nowhere in DRL 237 is the term "non monied spouse" defined, and the statute is silent whether support awards should be considered or ignored in determining who is the monied and non monied spouse. This issue is significant, as the presumption of fee awards goes hand in hand with the mandatory pendente lite maintenance formula. If both provisions were applied blindly, then the non monied spouse's resources could easily exceed the monied spouse's resources. Moreover, as section 237 makes no provision for the reasonableness of counsel fee awards, there is absolutely no incentive for the non monied spouse not to litigate everything for no other reason than to wear down the other side.
Since its enactment in 2010, the Courts have addressed this unintended consequence of excessive awards is for the Court to determine determine which spouse, if any, is the non monied spouse. Courts have made this determination after any award of support is made. In Scott M. v. Ilona M 2011 Slip Opinion 21026 the Supreme Court Kings County held that based upon the award of temporary maintenance and the reallocation of financial resources, the husband was no longer the monied spouse for purposes of a DRL 237 mandatory counsel fee award. Instead, the Court awarded a smaller sum for counsel fees, since the Wife now had the resources to pay for a portion of her own legal expenses.
Any request for counsel fees must be supported by sufficient information to allow the court to determine the reasonableness of the fee request. In Massina v Massina (Second Department 2017) the Appellate Division rejected a fee request award as the attorney making the request failed to include any documents about the billing, and therefore the court was unable to determine if they were reasonable.
Appellate review of counsel fee awards is allowed. In doing so, the Appellate Division has as much discretion as the trial court. See Marin v Marin (Second Department 2017).
About J. Douglas Barics
J. Douglas Barics is a divorce attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.
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