Counsel Fee Awards

Counsel Fee Awards in Matrimonial Actions

What you need to know about counsel fee awards

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What is an Award of Attorney Fees in a Divorce?

An award of attorney fees is a discretionary award made by the court. It is not designed to punish a spouse, but instead it is to allow both spouses to have equal access to attorneys

Who Pays Attorney Fees in a Divorce?

Each spouse is responsible for the 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.

What Factors are Considered by the Court in Awarding Counsel Fees?

The court will consider the following factors when it decides if and how much to award in legal fees.

1. The nature and extent of the services rendered
2. The actual time spent
3. The necessity for the services
4. The nature of the issues involved
5. The professional standing of counsel, including background and experience
6. The results achieved
7. The financial circumstances of the parties
8. A party's obstructionist tactics

How are counsel fees heard by the court?

A party seeking or opposing a counsel fee request is entitled to a hearing. If both sides consent, it can be done on papers. Paper submissions on counsel fees are typical with hearings being the rare exception.

When can counsel fee requests be made?

Counsel fee requests can be made prior to the judgment of divorce. For appellate counsel fees, they can be made post judgment. Post judgment applications can also request counsel fees despite being post judgment.

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. This motion must include a statement of net worth.

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.

Contact Our Divorce Attorney Today

At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any divorce involving counsel fees, 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.