Counsel Fee Awards
Counsel fee awards are designed to insure the spouse with more money and assets cannot obtain an unfair advantage by having more money to spend on lawyers.
Counsel fees can be awarded while the case is pending as interim fee awards, and at the conclusion of the case.
The theory behind counsel fees is often reflected in court decisions awarding fees, as they are done so to insure a level playing field between spouses in a divorce.
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, 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.
In many cases, temporary awards are not sufficient to cover a reasonable share of the final determination of counsel fee awards, and a final award of counsel fees will make up any shortcoming.