Archive for the ‘attorneys fees’ Category

No-Fault Divorce Becomes Law In New York

Sunday, August 15th, 2010

The no-fault divorce bill has been signed by the Governor Patterson and will go into effect in 60 days.  That means that starting on October 13, 2010, someone who wants to be divorced in New York will no longer be required to make allegations of martial fault by the other spouse and will only be required to swear that the relationship between husband and wife has  broken  down  irretrievably  for  a period of at least six months.  The new law will apply to the divorce actions commenced on or after such effective date.

In addition, the Governor signed legislation that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards. This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys’ fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. Provisions of the Domestic Relations Law related to temporary maintenance and attorneys fees will go into effect in 60 days as well.

These are important development in New York’s family law and I think that it will take some time to assess their impact.  At the same time, I think that they will be welcomed by divorce lawyers in this state and will make divorce easier for the divorcing spouses. With respect to the bill establishing the formula for temporary maintenance, it is highly likely that any such temporary maintenance award is going to be used by the courts as a basis for a permanent maintenance award.

Pendente Lite Motions And Available Relief

Sunday, July 5th, 2009

A divorce case could easily last for a year or, occasionally, much longer. Therefore, it is common for the parties to seek various forms of relief from the court while the action is pending.  This type of relief is commonly referred to as pendente lite and is usually obtained by making a motion, brought by an order to show cause.  Such motion is usually supported by affidavits, exhibits, and statements of net worth. A pendente lite motion may seek such things as temporary custody of children, temporary schedule of visitation with the minor children, temporary child support, temporary maintenance, exclusive possession of the marital residence, temporary order of protection, interim award of attorneys fees, interim award of expert fees, and an order restraining marital assets.  Since pendente lite motions are made on expedited basis, not all facts may be known at the time the motion is brought.  Once the relief sought in the pendente lite is granted, the court’s decision is unlikely to be reversed on appeal since numerous cases have held that the proper remedy for objections to a pendente lite order is a plenary trial.  As the court stated in Penavic v. Penavic, 60 A.D.3d 1026 (2nd Dept. 2009), “[t]he best remedy for any perceived inequities in the pendente lite award is a speedy trial, at which the disputed issues concerning the parties’ financial capacity and circumstances can be fully explored.” After the final decision is made, the trial court has the power to adjust the pendente lite relief.

The most significant form of pendente lite relief in many cases is temporary maintenance.  As the court stated in Mueller v. Mueller, 61 A.D.3d 652 (2nd Dept. 2009), “pendente lite awards should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse . . . with due regard for the  preservation standard of living”. It is the burden of the party seeking pendente lite relief to demonstrate the need for the award sought. The standard of living previously enjoyed by the parties is a relevant consideration in assessing the reasonable needs of a temporary maintenance applicant.

One critical issue that can be addressed by a pendente lite motion is preservation of marital assets. Pursuant to Domestic Relations Law § 234, a court has broad discretion in matrimonial actions to issue injunctive relief in the interest of justice to preserve marital assets pending equitable distribution. Place v. Seamon, 59 A.D.3d 913 (3rd Dept. 2009). Such request for restraints on property transfers can be granted upon the movant demonstrating that the spouse to be enjoined “is attempting or threatening to dispose of marital assets so as to adversely affect the movant’s ultimate rights in equitable distribution”.

Pendente lite financial relief is usually retroactive to the date of filing of the motion.

For many, getting exclusive occupancy of the marital residence during the pendency of a divorce action can be as important as the ultimate divorce itself. Yet the emotional need to be free of the company of one’s spouse is never enough. The courts do not lightly infringe upon the right of a spouse to remain in his or her home even where, for example, that spouse continues an adulterous relationship, or the marital residence was owned by the other spouse prior to the marriage.

Where both parties remain in the home when the application for temporary exclusive occupancy is brought before the court, the party seeking occupancy must show that the other party is a threat to the safety of person(s) or property. The party seeking such relief must present detailed allegations supported by third party affidavits, police reports and/or hospital records may be needed to convince the court that the application is not an effort to force the other party out of the house. Even then, if the other party contradicts the allegations of the application with his or her own sworn affidavit, the court may order that a hearing be held to resolve the conflicting versions of the facts. Occasionally, the evidence of the threat to safety is sufficiently persuasive that a court will dispense with the requirement of a hearing, and grant an order of exclusive occupancy based only upon a review of the papers submitted. As I have written before, such relief can also be obtained from the Family Court on expedited basis and, occasionally, on ex parte basis,  if the safety of a party is at issue.

A pendente lite motion which requests either child support, maintenance or attorneys fees, must include a statement of net worth as an exhibit, even if the statement of net worth has been filed separately.

One form of relief that is typically not available as a part of a pendente lite application, is the order directing the sale of the marital residence. Such relief can only be obtained after trial.

If a party decides to violate the pendente lite order, the proper application is contempt. Shammah v. Shammah, 22 Misc.3d 822 (Sup. Ct. Nassau Co. 2008).

Usually, a pendente lite motion sets up the parties’ positions with respect to critical issues in their divorce case.  If a lawyer is successful in obtaining the relief sought, his/her client’s position going forward will better and the client’s negotiating posture may improve significantly.  Most  divorce attorneys recognize this and are careful in making pendente lite motions.

Attorneys Fees Ordered in Family Court and Discharge in Chapter 7 Bankruptcy

Sunday, May 31st, 2009

I have previously written how the bankruptcy courts deal with attempted discharge of the so-called domestic support obligations. However, that post focused primarily on discharge of obligation that arose as a result of divorce proceedings and child support. Occasionally, I see an attempt to discharge an obligation arising out of Family Court proceedings, specifically, attorneys fees.

While it is clear that the child support or spousal support obligations are not dischargeable in bankruptcy as domestic support obligations, the question of attorneys fees granted in a child support or other proceeding in Family Court was less clear cut until Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), where the Appellate Division, Third Department, held that the award of counsel fees by the Family Court was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.

In Ross, the mother filed a petition for violation of a prior order of custody and visitation in 2005. In response, multiple cross petitions were filed by the father alleging violations by the mother and seeking modification of custody. In an August 2006 order resolving the parties’ petitions, Family Court sustained the mother’s motion for counsel fees and ordered that the father pay $ 5,000 of her counsel fees. The father subsequently filed for bankruptcy under chapter 7 of the Bankruptcy Code and, in Schedule F of his petition, he listed the award of counsel fees as an unsecured debt. The father was discharged by order of the Bankruptcy Court in January 2007 and, shortly thereafter, the mother commenced the present proceeding in Family Court for the violation of a court order based upon the father’s failure to pay the counsel fees. Contending that the debt had been discharged in bankruptcy, the father moved to dismiss the petition. Family Court, among other things, concluded that the counsel fees awarded in its prior order were a nondischargeable domestic support obligation, denied the father’s motion and granted the mother’s petition in part, finding the father to be in violation of a prior order.

The Appellate Division noted that state and federal courts have concurrent jurisdiction over the issue of the dischargeablity of a particular debt following the discharge of the debtor in bankruptcy. It reviewed the father’s contention that the counsel fees, although awarded in the context of a Family Court proceeding regarding custody and visitation, were not “in the nature of support” for the parties’ children. The Court held that since the mother’s initial petition commencing the proceeding clearly raised issues of financial need and hardship and her motion for counsel fees, which was sustained by Family Court in the August 2006 order, proposed consideration of her circumstances as one basis for an award of counsel fees. The Court held that the term “in the nature of support” is to be given a broad interpretation in the context of the discharge of debt obligations in bankruptcy and agreed with Family Court’s determination that the award of counsel fees in its prior order was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.

The real issue in this case is whether the custody petition really was in the nature of support. The mother’s lawyer was able to persuade the both the Family Court and the Appellate Division that it was. While the Appellate Division relied on the award of attorneys’ fees and the relevant standard under the Family Court Act, an argument can be made that the Court should have looked to the underlying proceeding only and that proceeding dealt exclusively with custody issues. One of the factors in any award of attorneys’ fees is ability to pay, so that can make an award of attorneys fees in any proceeding in Family Court to be in the nature of support.

Basics of Bankruptcy Discharge and Domestic Support Obligations

Wednesday, March 4th, 2009

On occasion, a divorce may result in one or both of the parties filing for bankruptcy, often without an adequate understanding of the limited relief available in the bankruptcy court. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) directly addressed issues related to the dischargeability of marital debt and support obligations, as well as to the effect of the automatic stay on collection and enforcement proceedings out of divorce and family law litigation.

Under bankruptcy law, a “domestic support obligation” is any debt incurred before or after a bankruptcy filing that is owed to or recoverable by a spouse, former spouse, child or governmental unit; in the nature of alimony, maintenance or support; and established pursuant to the terms of a divorce decree, separation agreement, property settlement agreement, court order or administrative determination.

In Chapter 7 bankruptcy, essentially all marital and domestic relations obligations are not dischargeable, regardless of whether they are support in nature, property divisions or “hold harmless” agreements, provided they were incurred by the debtor in the course of a matrimonial proceeding or a divorce action which resulted in a separation agreement, divorce decree, court order or administrative determination.

A debtor’s obligation to pay marital debts directly to a third party ( ie., pay the mortgage on former marital residence) and to hold the former spouse harmless on said debts is also deemed to be non-dischargeable if the obligation has the effect of providing support to the former spouse. A debtor’s duty to pay the following expenses are usually deemed to be in the nature of support and not dischargeable: educational expenses of a minor child; medical insurance coverage for a minor child; and life insurance, with the minor children as beneficiaries.

Attorney’s fees owed by debtor to his own lawyer are clearly dischargeable in bankruptcy, but as a general rule, attorney’s fees owed by debtor to a former spouse’s attorney are not dischargeable, if the underlying legal proceeding resulted in the entry of an order or judgment directing payment of maintenance or spousal support to the former spouse.

The division of a debtor’s pension benefits during the divorce action is usually accomplished by entering a Qualified Domestic Relations Order (“QDRO”). Since division of a pension is considered to be a transfer by debtor of a present interest in his pension, and as such, it is not a debt that can be discharged in bankruptcy.

In Chapter 13 bankruptcy, past due domestic support obligations owed by a debtor are not dischargeable, unless they are paid in full over the life of the Chapter 13 plan. However, if a debt created by a separation agreement or judgment of divorce is not in the nature of support, it sometimes can be discharged in Chapter 13 without being paid in full.

For a Chapter 13 Plan to be confirmed by the Bankruptcy Court, it must: pay in full to the former spouse all domestic support obligations owed by debtor at the time of the bankruptcy filing, and the debtor must be current on all domestic support obligations incurred after the bankruptcy filing.

A Chapter 13 Plan, even if confirmed by the bankruptcy court, is subject to dismissal if the debtor fails to pay any post-petition or post-confirmation domestic support obligations, and a Chapter 13 discharge will not be entered by the bankruptcy court unless and until a debtor certifies that all domestic support obligations have been paid and that the debtor is current on such obligations.

The automatic stay created by a bankruptcy filing bars the commencement or continuation of most legal proceedings, but it has no effect on a proceeding to establish paternity; to establish or modify a child support order, determine child custody or visitation issues, or dissolve a marriage, except to the extent that such proceeding may seek to determine a division of marital property in which the bankruptcy estate also has an interest. In those situations, the divorce can be granted without first obtaining relief from the automatic stay, but the marital property cannot be divided without obtaining such relief.

The automatic stay also does not prevent the post-petition collection of domestic support obligations such as alimony or child support from any property belonging to the debtor, providing that the bankruptcy estate does not also have an interest in the same property; from automatic wage deduction orders created by a statute or judicial or administrative order; from the interception of debtor’s federal or state income tax refunds, or
from the withholding, suspension or restriction of a debtor’s driver’s license or professional or occupational license. Therefore, Bankruptcy Court does not offer much protection for someone seeking to avoid the domestic support obligations.

The above rules will apply to the proceedings in New York State courts. In Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), the Appellate Division had to address a situation where one of the parties was seeking to enforce a counsel fee award after the other party filed for bankruptcy. In Ross, multiple violation petitions had been filed by the parties over the course of several years. In August 2006, Family Court upheld mother’s motion for counsel fees and directed father to pay $5,000 of the mother’s counsel fees. Father filed for a Chapter 7 bankruptcy thereafter, and listed the award of counsel fees as an unsecured debt. Father’s bankruptcy was discharged in January 2007. Mother brought a violation petition which alleged that father failed to pay the counsel fees. Father moved to dismiss petition on ground that he discharged counsel fee award in bankruptcy. The Appellate Division stated that state and federal courts have concurrent jurisdiction over issue of dischargabilityof a particular debt and held that domestic support obligations in the nature of support are exempt from discharge in bankruptcy. While father contended that counsel fees incurred were for custody and visitation proceeding, the record reveals that mother’s initial petition commencing the proceeding raised issues of financial need and hardship. According to the Appellate Division, term “in the nature of support” is broadly interpreted in the context of discharge of debt obligations in bankruptcy and held that the award of counsel fees was in part in the nature of support, and as such, exempt from discharge in bankruptcy.

Divorce and Other Family Law Proceedings and Attorneys Fees Award

Monday, December 29th, 2008

Attorneys fees awards are often at issue in divorce cases. Such awards are in the court’s discretion. Their primary purpose to allow a non-asset spouse to prosecute on or defend the divorce action, so that the parties are litigating on an equal footing so that one spouse does not have a greater economic leverage than the other spouse.

The Domestic Relations Law (“DRL”) recognizes those economic realities in divorce litigation and allows for award of attorneys fees, either on interim basis while the action is still pending, or after the action has been concluded. Counsel fee awards are not authorized by any provision of the DRL in actions or proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.

DRL §237(a) provides that

in any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, (2) for a separation, (3) for a divorce, (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and who did not appear therein where such spouse assert the nullity of such foreign judgment, or (5) to enjoin the prosecution in any other jurisdiction of an action for a 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 and defend the action or proceeding as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

Where an action for annulment is maintained after the death of a spouse, DRL §237 (a) authorizes the court to direct the person or persons maintaining the action to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to defend the action.

“Expenses” is defined in DRL §237(d) and includes, but is not limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses as the court may determine to be necessary to enable a spouse to carry on or defend one of the actions or proceedings designated in §237(a).

DRL §237(b) provides that,

upon any application to annul or modify an order or judgment for alimony or for custody, visitation or maintenance of a child, made (as prescribed in §§236 or 240) or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay such sum or sums of money for the prosecution or the defense of the application or proceeding for the other spouse or parent as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

DRL §238 states:

In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or in any proceeding pursuant to (§§243, 244, 245 or 246), the court may, in its discretion, require either party to pay the expenses of the other in bringing, carrying on or defending such action or proceeding.

The Domestic Relations Law also provides that, in a proceeding to obtain an order of protection or to enforce such an order, the Court may require any party to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing that order. Such fees may be awarded only in favor of the person obtaining the order or seeking to enforce it.

Counsel fees and expenses may also be obtained by a person seeking to enforce a custody decree of another state under several sections of the Uniform Child Custody Jurisdiction Act and in proceedings to hold a person in contempt of court for failure to obey a non-monetary order, under certain circumstances.

Domestic Relations Law §237(c) provides for a mandatory award of counsel fees in certain enforcement proceedings. The statute provides that in any action or proceeding for failure to obey any lawful order compelling payment of support, maintenance, or distributive award, the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the petitioner’s attorney.

The Court of Appeals in DeCabrera v. DeCabrera-Rosete, 70 N.Y.2d 879 (1987) noted that DRL §237 allows for flexibility. Lack of funds is not a prerequisite to an award of counsel fees. Rather, in exercising its discretionary power to award counsel fees, a court must 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.

The court determined that an award of fees for the time spent by counsel in making the counsel fee application, and in related proceedings, comports with the purpose of the statute and should therefore be encompassed within its scope. It stated that if the time spent in applying for fees was not included in the award, the purpose of the statute could be frustrated by the more economically advantaged spouse engaging in protracted proceedings on the fee application and thereby increasing the cost of obtaining counsel fees for the less affluent spouse.

In O’Shea v. O’Shea, 93 N.Y.2d 187 (1999) the Court of Appeals clarified issues related to award of attorneys fees. It concluded that courts have the discretion, in appropriate cases, to grant such awards, based upon criteria that include the circumstances of the parties and the reasonableness of their positions. The Court of Appeals also held that courts have the discretion to grant counsel fees to the wife for legal services rendered in connection with the hearing to determine the fee award.

Subsequently, in Frankel v. Frankel, 2 N.Y.3d 601 (2004), the Court of Appeals recognized that “the realities of contentious matrimonial litigation require a regular infusion of funds,” and that “more frequent interim counsel fee awards would prevent accumulation of bills”. Quoting from the 1993 report of the Committee to Examine Lawyer Conduct in Matrimonial Actions, the Court noted that “[t]he practice of many judges to defer [pendente lite counsel fee applications] to the trial court essentially delays the awarding of fees until the final settlement or judgment, and often compromises the non-monied spouse’s ability to adequately litigate the case’”.

In Prichep v. Prichep, 52 A.D.3d 61 (2nd Dept. 2008), the Second Department held that because such awards relate directly to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. Its conclusion relied on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted.

The facts in Prichep were as follows. The divorce action was started by the husband in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. Her motion stated that, although the court previously had granted her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was earning $420,100 per year, while she worked part-time, earning $4,015 per year. In opposing the motion, the husband argued that the wife had engaged in unnecessary litigation, and incurring excessive counsel fees. Supreme Court denied the wife’s motion without prejudice to a renewal at a later date. Subsequently, the wife moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm’s request to the extent of relieving it as counsel for the wife. The wife appealed the denial of interim attorneys fees award. The Appellate Division held that an award of interim counsel fees ensures that the nonmonied 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’ “(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O’Shea v. O’Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, “a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis”. The Appellate Division reversed the lower court’s decision and awarded the fees sought.

As important as the attorneys fees are during the pendency of the divorce action, they are just as important at the end of the action. When the final application for attorney fees is made, the court must consider the following factors: (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 spouses; and (8) a spouses’ obstructionist tactics. It is also appropriate for the court to consider each spouse’s settlement demands and negotiation position in determining the appropriateness of a counsel fee application. A party can obtain both interim and final attorneys fees awards in a single divorce action.

Divorce, Immigrant Spouse, Maintenance and Affidavit of Support

Sunday, December 14th, 2008

When either a husband or wife marries someone who is not a legal resident of the United States and brings them to this country, as a part of his/her immigration application, the spouse who is a citizen of the United States certified that he/she would provide support for their spouse once that spouse is in the United States and would not allow her to become a public charge. See 8 U.S.C. §1182(a) (which prohibits immigration when the immigrant has no means of support and is likely to become a public charge). This requirement is satisfied by what is known as an affidavit of support, I-864 form. By signing it, the party certifies that he/she would provide to their spouse with income of 125% of the Federal Poverty Level guidelines. For 2008, the Federal Poverty Level guidelines state that the poverty level income for a household of one is $10,400.00, and the corresponding income level under the affidavit of support is $13,000.00.
According to the Appellate Division, Fourth Department, where a party signs an affidavit of support, from I-864, that affidavit is a legally enforceable contract. Moody v. Sorokina, 40 A.D.3d 14 (4th Dept. 2007). In that case, a Ukrainian national emigrated to the United States to marry her eventual husband in New York. When the husband filed for divorce several years later, the wife sought to enforce the Affidavit of Support for purposes of determining the amount of support payments to be made by the husband. While the trial court rejected the wife’s argument and held that the affidavit could not be enforced in court by private parties, the Appellate Division, Fourth Department reversed the lower court and held that the affidavit of support was enforceable. The Appellate Division held that the execution of a affidavit of support creates a legally enforceable agreement between the parties involved that can be enforced by the sponsored immigrant in any federal or state court. Id. at 401. Moreover, the Fourth Department explained that the terms of the agreement are not affected by a subsequent judgment of divorce. As such, the agreement remains fully binding on all parties until the sponsored immigrant “has worked 40 qualifying quarters of coverage,” as defined by the Social Security laws. The enforcement of the right of support also includes attorneys fees. Id.
Therefore, when the spouses separate and the immigrant spouse is unable or unwilling to work, the spouse who is a citizen of the United States will be responsible for their spouse’s support until such time as that spouse becomes self-sufficient, or perhaps even indefinitely.

Divorce, Attorneys Fees and Unequal Economic Positions of the Parties

Monday, December 8th, 2008

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.