Divorce, Attorneys Fees and Unequal Economic Positions of the Parties

I am often asked whether in a situation where one party controls all the money, is the other party entitled to attorneys’ fees? The concept of interim awards of legal fees is often critical. Potential clients meet with me and tell me that they cannot afford to hire me, and other party is going to win the case because he/she can afford an expensive attorney. The courts in New York are mindful of this problem and tend to grant attorney fees to the non-monied spouse.

In order to ensure that the parties will have equal access to competent legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the non-monied spouse during the course of the litigation. Because of the importance of such awards to the fundamental fairness of the proceedings, an application for interim counsel fees by the non-monied spouse in a divorce action should not be denied — or postponed until after the trial, which functions as a denial of such fees, without good cause.

The Domestic Relations Law provides that, in an action for divorce, “the court may direct either spouse . . . to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties”. See Domestic Relations Law § 237[a]. The court may direct such payments in the final judgment and/or “by one or more orders from time to time before final judgment”. Id. The Court of Appeals has explained that Domestic Relations Law § 237:

“is designed to redress the economic disparity between the monied spouse and the non-monied spouse. Recognizing that the financial strength of matrimonial litigants is often unequal — working most typically against the wife — the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for legal expenses of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet” (O’Shea v. O’Shea, 93 N.Y.2d 187, 190 (1999)).

An award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue “is controlled by the equities and circumstances of each particular case”. Timpone v. Timpone, 28 A.D.3d 646 (2nd Dept. 2006). In determining whether to award fees, the court should “review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions”. DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881 (1987). The court may also consider whether either party has engaged in conduct that caused a delay of the proceedings or resulted in unnecessary litigation. Ciampa v. Ciampa, 47 A.D.3d 745, 748 (2nd Dept. 2008).

An award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award “is appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation”. O’Shea v O’Shea, 93 N.Y.2d at 193.

Although interim counsel fees are normally payable directly to the attorney representing the non-monied spouse, there is no prohibition to directing payment of fee awards directly from the monied spouse to the non-monied spouse.

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