Attorney Fee Awards
Understanding Attorney Fee Awards in New York Divorces
How counsel fees are awarded in divorce cases
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
Services Offered
- Pendente lite counsel fees. We can request counsel fees early in your divorce to make sure you have a lawyer.
- Final awards of counsel fees. We can request counsel fees at the conclusion of your divorce to offset the financial disparity you may have with your spouse
- Appellate counsel fees. We can request counsel fees for your appeal
- Defense against unjust counsel fee requests. We can oppose improper counsel fee awards
Why Choose The Law Office of J. Douglas Barics
At the Law Office of J. Douglas Barics, we have extensive experience in requesting and opposing counsel fee requests. If counsel fees are an issue in your divorce, you need an attorney with experience in handling counsel fee applications.
Do you need representation in a divorce where a counsel fee award is needed?
Contact us online or at (631) 864-2600.
What You Need to Know About Attorney Fee Awards
What is an award of attorney fees in a divorce?
An award of attorney fees is an order which requires one spouse to pay the other spouse's lawyer fees in a divorce or matrimonial action. Its purpose is to equalize the playing field to allow both spouses to have the same level of representation. When both spouses have roughly the same level of financial resources attorney fees are usually not awarded. They are designed to be be used when there is a financial disparity between both spouses.
Who pays attorney fees in a divorce?
Each spouse is responsible for their own attorney fees. But when there is a financial disparity between the parties, the court can award counsel fees from the monied spouse to the non monied spouse. Attorney fee awards can either be made pendente lite, with temporary fee awards being made as the case progresses, or as part of a final award which involves a more in depth analysis for the basis for the need of the awards.
What factors are used by the court in awarding attorney fees?
- Financial Disparity Between the Parties. When the basis for an attorney fee request is financial disparity, the court will consider the following factors when it decides if and how much to award in legal fees.
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- The nature and extent of the services rendered
- The actual time spent
- The necessity for the services
- The nature of the issues involved
- The professional standing of counsel, including background and experience
- The results achieved
- The financial circumstances of the parties
- A party's obstructionist tactics
- Enforcement. When the basis for the fee award is non compliance with an order or judgment, a finding of non compliance and a determination if the non compliance was willful will both be considered. When the non compliance was willful, an attorney fee award is mandatory. The court will still determine if the amount of the request is reasonable.
How are attorney fees determined by the court?
Attorney fee awards occur either as pendente lite awards or as part of the final judgment, and are determined differently.
- Pendente Lite Attorney 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, and are decided before all financial issues are examined in depth. Pendente lite attorney fees are obtained by filing a pendente lite motion. This motion must include a statement of net worth, the retainer statement, invoices, and a supporting affirmation or affidavit from the lawyer and the party.
- Final Award of Attorney Fees. A final award of attorney fees will explore in greater depth the factors listed above. The party seeking or opposing attorney fees is entitled to a hearing on the fee award, but hearings are usually reserved for the more complicated cases. The vast majority of times attorney fee awards are decided on papers, with the side requesting attorney fees stating the basis for the request on papers which includes all relevant exhibits. The side opposing the fee request will then submit their own papers, explaining why the fee award should be denied.
- 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.
When can attorney fee requests be made?
- Trial Attorney Fees. Attorney fee requests can be made prior to the judgment of divorce.
- Appellate Attorney Fees. For appellate counsel fees, they can be made post judgment. Post judgment applications can also request counsel fees despite being post judgment.
- Post Judgment Attorney Fees. Attorney fees can be requested in post judgment matters, but only for the fees incurred after the judgment of divorce. Attorney fees can be awarded for either prosecuting or defending a post judgment application.
Contact Our Divorce Attorney Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any divorce involving attorney fee requests, no matter how challenging or complex. With over 20 years of experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled matrimonial lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.