Counsel Fee Awards

Counsel Fee Awards

By J. Douglas Barics
Suffolk and Nassau Divorce Attorney

Many times one spouse will have significantly more financial resources than the other. In order to ensure that the spouse with more money doesn't have an unfair advantage, the courts have the authority to award counsel fees to equalize both sides ability to obtain a lawyer of their own choosing. If any of the following situations apply, you may be entitled to an award of counsel fees:

• You are in a divorce or annulment action, and your spouse has significantly more financial resources than you do
• You are seeking to enforce, defend, or modify any award of child support, maintenance, or equitable distribution
• You are seeking to enforce non payment of child support, maintenance, or equitable distribution and the non payment was willful

Pendente Lite Counsel Fee Awards

Pendente lite counsel fee awards are counsel fee payments made while the divorce is pending. They are designed to allow a spouse to have an attorney to represent him or her throughout the case.  Pendente lite attorney fees are obtained by filing a pendente lite motion.

Counsel Fee Awards as Part of the Final Judgment or Disposition

At the conclusion of the divorce, the court is authorized to award counsel fees under DRL 237. There is a presumption that the non monied spouse must pay counsel fees, but this presumption can be overcome. A hearing to determine the qualifications of counsel, the rate charged, the time billed, and the value of the services are all considerations. The finances of the parties also plays a significant role. The hearing can be waived and it is common to resolve counsel fee requests on paper.

Counsel Fees in Enforcement Proceedings when the non Compliance is Willful

When a party to a matrimonial action fails to obey an order and the court finds the disobedience to be willful, an award of counsel fees is mandatory. The court will determine if the fees requested are reasonable or not. For attorney fee awards in enforcement proceedings, the financial circumstances of the parties is not a factor, the focus is on non compliance.

Counsel Fees in Prosecuting or Defending an Enforcement or Modification Proceeding

Separate from the mandatory award of counsel fees for a finding of willfulness, the court has the authority to award counsel fees in prosecuting or defending enforcement and modification proceedings. Here, the court is granted broad discretion to determine counsel fee awards.

Counsel Fee Awards a Rebuttable Presumption

As of 2010, there is a rebuttable presumption that the monied spouse shall be ordered to pay counsel fees to the monied spouse. This means that the default decision is to award counsel fees if asked and it is the burden on the monied spouse to show why an award is not proper.

However, awards of counsel fees under this current rule cannot be read in a vacuum, and any request for counsel fees must be considered hand in hand with awards of temporary maintenance.  Under the income shifting model now in place for spousal maintenance, the courts will look at the incomes of the parties after any temporary support award. In many cases, an award of maintenance allows the recipient spouse to pay for his or her own lawyer from the maintenance. But if there is still a large disparity in resources after the award, then the presumption still remains.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions about obtaining counsel fees in your matrimonial action, or if your spouse may seek a counsel fee award against you, contact our office to learn about your legal options for protecting your rights to help insure that any award is appropriate under the circumstances.  To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.