Counsel Fees in Divorce

Counsel Fees in Divorce in New York: Understanding DRL 237 and DRL 238

Retaining the right lawyer is often the most important decision a litigant will make during the course of a divorce case. Financial constraints may impede one’s ability to retain proper counsel and sufficiently prosecute or defend a case. With that in mind, New York State has enacted various statutes intended to protect litigants and enable them to retain an attorney. In New York, Domestic Relations Law (DRL) § 237 and § 238 provide a framework for awarding counsel fees in divorce cases, aiming to level the playing field by ensuring equity and fairness through all phases of the litigation.

Interim Counsel Fees: Leveling the Playing Field

The question of who pays attorney fees in a divorce in New York is asked in nearly every consultation. A crucial aspect of DRL § 237 is the rebuttable presumption that the less monied spouse should be awarded counsel fees. This statute is particularly important in situations where there’s a significant income disparity between spouses. The goal is to ensure the less wealthy spouse has adequate legal representation from the outset. This means the court starts with the assumption that the spouse with fewer financial resources needs assistance to afford adequate legal representation. Such an award of counsel fees is available in both contested divorce and uncontested divorce.

It is essential to note that it’s called “rebuttable” for a reason. The wealthier spouse has the opportunity to present evidence to challenge this presumption. They might argue that the other spouse has sufficient assets or income to pay their own legal fees, or that their own financial situation isn’t as strong as it appears.

Seminal Cases on New York Divorce Counsel Fee Awards

Two landmark cases have shaped how courts apply these laws:

• O’Shea v. O’Shea: This case established that the purpose of awarding counsel fees is not to punish the wealthier spouse but to ensure that the less affluent spouse has adequate legal representation. The court emphasized the need to prevent the “matrimonial scales of justice” from being unbalanced by financial disparities.
• Prichep v. Prichep: This case provided further guidance on awarding interim counsel fees (those awarded during the divorce proceedings). The court clarified that the goal is not to equalize the parties’ financial positions but to provide the less monied spouse with sufficient funds to litigate on equal footing.

What Expenses Can Counsel Fee Awards Cover?

Counsel fees aren’t limited to just your attorney’s hourly rate. They can encompass a wide range of expenses necessary for effective legal representation, including:

• Legal fees for matters such as attorney consultations, court appearances, drafting motions, legal research, correspondence, discovery (depositions, file review, etc.) and trial.
• Expert witness fees (e.g., forensic accountants, child custody evaluators)
• Appraisals of assets like real estate or businesses.

Factors Influencing Counsel Fee Awards

Courts consider a variety of factors when determining whether to award counsel fees and how much to award. These include:

• Financial Circumstances: The income and assets of each spouse are crucial. Courts aim to prevent one spouse from being disadvantaged due to a lack of resources.
• Merits of the Case: While not the primary factor, a court might consider the relative merits of each party’s position. A frivolous claim or defense could influence the decision.
• Complexity of the Case: More complex cases requiring extensive litigation or expert testimony might justify higher fees.
• Misconduct: A spouse’s misconduct during the divorce, such as hiding assets or unnecessarily prolonging the proceedings, can be a factor.

Post-Judgment Counsel Fees: Modifications and Enforcement

Life changes, and sometimes divorce agreements need modification. DRL § 238 also allows for counsel fee awards in post-judgment proceedings, such as:

• Modification of Support: If circumstances change significantly, a spouse may seek to modify child support or spousal maintenance.
• Enforcement: If one spouse fails to comply with the divorce judgment, the other spouse may need to take legal action to enforce it.

In these situations, the court will again consider the parties’ financial circumstances and whether one party is acting unreasonably or in bad faith.

Strategies for Seeking Counsel Fees

If you’re considering seeking counsel fees in your divorce, here are some essential points to keep in mind:

• Detailed Documentation: Maintain meticulous records of all legal expenses, including invoices, billing statements, and descriptions of the services provided.
• Strong Arguments: Clearly articulate why you’re entitled to counsel fees, emphasizing the relevant factors like financial disparity or the other party’s misconduct.
• Experienced Legal Counsel: An experienced divorce attorney can help you navigate the complexities of DRL § 237 and § 238, ensuring your rights are protected.

Contact Us – We’re Here to Help Obtain Your Counsel Fee Award

Divorces can be costly and contentious. Don’t let financial concerns hinder your access to justice. If you’re facing a divorce on Long Island, contact the Law Office of Louis L. Sternberg, PC today for a free consultation. We’ll provide expert guidance on counsel fees and all other aspects of your case, empowering you to make informed decisions and protect your future. Call us now at 631-600-3295 or use our online intake form to discuss your case.