Right to Counsel in Divorce and Family Court

March 18, 2013
Louis Sternberg

Clarence Earl Gideon

50 years ago today, the United States Supreme Court decided the case of Gideon v. Wainwright, 372 U.S. 335 (1963).  In this landmark case, the Court unanimously ruled:

The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment.


The Gideon decision speaks only to criminal defendants who are unable to afford to retain their own attorney.  In an article entitled “Right to Lawyer Can Be Empty Promise for Poor” published last week, the New York Times discusses the evolution of the Gideon decision and how the right to an attorney has not been extended to all civil cases.

Essential in the Gideon decision and its progeny is that the right to an attorney without any fee to the litigant is generally a right reserved for the defendant and there is no analogous provision for the plaintiff or petitioner in a civil case.  While in some civil cases, a defendant (or respondent in certain courts) may be entitled to a court-appointed lawyer, the plaintiff or petitioner rarely is entitled to a court-appointed lawyer.  The result is often that a plaintiff or petitioner is left to precede “pro se” (meaning that the person represents him or herself) against a defendant / respondent represented by a private attorney.  This can be tremendously problematic, especially in a divorce or in Family Court.

A common occurrence, for instance, in Family Court is the custodial parent who files a violation petition pro se seeking payment of unpaid child support from a non-custodial parent who has a private attorney.  Of course, the non-custodial parent, when represented by a lawyer is far more successful, especially when the petitioner is unrepresented.

Similarly, many people feel that they cannot pursue a divorce because they have no assets but their spouse, who earns a substantial income, will have an attorney.  Often the “lesser monied” spouse will be wary an uneven playing field and decide not to pursue the divorce.

New York’s Family Court Act and Domestic Relations Law attempt to “even the playing field” in these situations by allowing the party with lesser assets to seek counsel fees from the other side.  The Family Court Act allows for an award of counsel fees in many cases (such as child support cases or paternity cases) and even makes an award of counsel fees mandatory in some cases.  The Domestic Relations Law (New York State law governing matrimonial actions) goes so far as to create a presumption that the “monied spouse” will pay the attorney’s fees of the “lesser monied spouse.”

As a result of these provisions, some lawyers will take cases without requiring a retainer fee from the client.  In other situations, the attorney may seek only a small retainer in order to begin the case.  In these situations, the lawyer will make a motion to the court to have the other party pay the counsel fees.  My office regularly offers clients such arrangements so that the clients can bring their cases without fear of expensive lawyer fees.  Obviously each case is unique and not all cases can be taken based on this arrangement.  Please feel free to contact my office in order to discuss the possibility of a low retainer or no fee divorce.