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Understanding Counsel Fee Awards in New York Divorce Cases

If you are a dependent spouse, with little or no personal income, you may wonder how you can ever afford divorce representation. The short answer is simply to make your spouse pay for it. Under New York Domestic Relations Law § 237,"the court may direct either spouse . . . to pay . . . money directly to the attorney of the other spouse to . . . carry on or defend the action . . . as, in the court's discretion, justice requires. . . ." In short, if you cannot afford an attorney, the court may order your spouse to pay reasonable attorney fees so that you can be adequately represented. This includes:

  • The retainer
  • The hourly rate charged by the attorney
  • The amounts to be paid any experts
  • Any additional costs, disbursements or expenses

The point of the law is to prevent a miscarriage of justice. It’s fairly obvious that if one spouse controls the finances and has the ability to choke off the flow of money to the other, the moneyed spouse can deprive the dependent of legal representation and leverage a one-sided outcome. The same principle that forces the supporting spouse to pay temporary maintenance during the divorce process prompts courts to order payment of a dependent spouse’s counsel fees.

The court can order fees to be paid on a periodic basis or after proceedings when assets and debts are distributed.

However, the duty of a moneyed spouse to pay counsel fees is not absolute. The law states that it is a “rebuttable presumption” that a less moneyed spouse will be awarded counsel fees. That means the moneyed spouse can object to paying unreasonable fees, especially if the dependent spouse has acted in bad faith, dragging out the proceedings to run up litigation expenses, or if the legal bills are clearly disproportional to the amount of work done. The trial court determines whether fees should be charged to the moneyed spouse, charged to the dependent spouse and offset by assets received through equitable distribution, or divided between the parties.

If you have concerns about how you might pay for your divorce, speak to an experienced family law attorney about counsel fee awards. Call the Law Offices of Randy S. Margulis and Associates today at 716.886.9600 or contact our office online to schedule a consultation at our Buffalo-area office.

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