NY Divorce Essentials
Attorney Fee Awards in Divorce Actions
By J. Douglas Barics
In matrimonial actions, the court is authorized to award counsel fees when there is a significant disparity of financial resources between spouses. Since courts are normally without authority to award counsel fees, the legislature enacted DRL 237 and DRL 238. These two sections of the domestic relations law permit counsel and expert fee awards, and define the scope under which they can be made.
1. Domestic Relations Law Section 237 (DRL 237)
The purpose of DRL 237 is to allow a spouse with significantly less money than his or her spouse to obtain legal representation and necessary experts by directing the spouse with greater financial resources to pay.
DRL 237(a) authorizes attorney fees in the following matrimonial actions:
- An action for an annulment
- An action for a separation
- An action for a divorce
- An action for the declaration of the validity or nullity of a foreign divorce
DRL 237(b) authorizes counsel fees for the following matters:
DRL 237(c) under the following matters, an award of counsel fees is mandatory if there is a finding willful disobedience:
- An action or motion to enforce an order of child support
- An action or motion to enforce spousal maintenance
- An action or motion to enforce a distributive award
2. Domestic Relations Law Section 238 (DRL 238)
DRL 238 authorizes counsel fees for post judgment enforcement proceedings for the following matters: When there is a finding that the non compliance is willful, attorney fees are mandatory.
- A post judgment motion made following a divorce, judicial separation or an annulment
- Any enforcement proceeding made under DRL 243: Security for payments by defendant in action for divorce, separation or annulment; sequestration
- Any enforcement proceeding made under DRL 244: Enforcement by execution of judgment or order in action for divorce, separation or annulment
- Any enforcement proceeding made under DRL 245: Enforcement by contempt proceedings of judgment or order in action for divorce, separation or annulment
- Any enforcement proceeding made under DRL 246: Persons financially unable to comply with orders or judgments directing the payment of alimony.
3. Pre-trial (Pendente lite) Counsel Fees
DRL 237 authorizes an award of counsel fees both in the final judgment, or by one or more orders from time to time before final. Many times it would be grossly unfair to have the less affluent spouse wait until the conclusion of trial to be awarded fees. As such, a pendente lite motion, usually filed by order to show cause, is for an award of counsel and expert fees.
All requests for pendente lite attorney and expert fees must contain the following information:
- A signed statement net worth
- A copy of the retainer agreement if represented
- The attorney must disclose if anyone else promised to pay legal fees. See 22 NYCRR 202.16(k)
The failure to disclose a statement of net worth and retainer agreement will result in the court drawing a negative inference.
An unrepresented party is not required to submit a retainer agreement or affidavit of anticipated services under the 2015 amendments to DRL 237.
For expert fees, the request must be accompanied by an affidavit stating
- The nature of the marital property involved
- The difficulties involved if any, in identifying and evaluating same
- The services to be rendered and an estimate of the time involved
- The movant's financial status.
See Ahern v. Ahern (2nd Dept. 1983)
4. FACTORS IN DETERMINING AWARDS
In awarding counsel fees, it is not necessary for a spouse to be indigent to qualify for legal fees. See DeCabrera v. Cabrera-Rosete 70 NY 2nd 879, Court of Appeals 1987. Nor must a spouse exhaust all of his or her resources before a court will award fees. Instead, the basis is to level the playing field between the spouses.
In deciding counsel fee awards, the courts traditionally considered the following:
- Whether one spouse has substantially more income and assets than the other
- Whether or not the legal services were necessary
- Whether the amounts requested are reasonable under the circumstances
- Whether the monied spouse is better able to pay the fees
- Whether the monied spouse is responsible in making the fees larger than they should have been
- Whether any litigation was made in good faith or whether claims were made solely for use as bargaining chips
- The value of the services rendered
- The standing of the attorney and nature of services
- The complexity of the litigation
- The results obtained by the attorney
- The customary and ordinary legal fees normally charged by the legal community as compared to the requested fees
The time spent making an application for legal fees may be included in an award of lawyer fees. See O'Shea v. O'Shea 99 NY2d 187 Court of Appeals 1997.
Following the 2010 changes to the Domestic Relations Law, Section 237 was changed to make it a rebuttable presumption that the court shall award counsel and expert fees to the non monied spouse. This subtle change in language means the court is required to award counsel and expert fees unless the court finds reason not do do so.
The problem with this new approach occurs when this presumption is combined with the new mandatory pendente lite maintenance formula. If both provisions were applied blindly, then the non monied spouse's resources could easily exceed the monied spouse's resources. Moreover, as the revised section 237 makes no provision for the reasonableness of counsel fee awards, there is absolutely no incentive for the non monied spouse not to litigate everything for no other reason than to wear down the other side.
One way the courts have addressed this unintended consequence is to determine which spouse, if any, is the non monied spouse after any award of support is made. In Scott M. v. Ilona M 2011 Slip Opinion 21026 the Supreme Court Kings County held that based upon the award of temporary maintenance and the reallocation of financial resources, the husband was no longer the monied spouse for purposes of a DRL 237 mandatory counsel fee award. Instead, the Court awarded a smaller sum for counsel fees, since the Wife now had the resources to pay for a portion of her own legal expenses.
The article "Attorney Fee Awards in Divorce Actions" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at firstname.lastname@example.org or (631) 864-2600. For more articles and information, please visit www.jdbar.com.
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J. Douglas Barics, Esq. – Divorce, family, matrimonial, trial and appeals lawyer in Long Island, New York.