Counsel Fees and Expenses

Counsel Fees and Expenses

The court in NY has the discretion to award counsel fees and it may do so only in actions or proceedings where it is specifically authorized to do so, by statute.

The purpose of a counsel fee award is to insure that a needy spouse is enabled to defend or carry out a legal proceeding or action. This helps place both spouses on an equal economic footing in the action. It further ensures equal leverage by both spouses during litigation. The Supreme Court may order either spouse to pay counsel fees directly to the attorney for the other spouse to enable that spouse to carry on or 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.

Discretion of the Court

According to the New York Domestic Relations Law, the court has discretion to grant an award of counsel fees in annulment, separation, or divorce actions. The court can also do so in an action to declare the validity of a divorce judgment against the defendant spouse in an action out of NY State and who failed to appear in that action or in an action for divorce prosecuted in any other jurisdiction.

"Expenses" are defined as including fees for accountants, appraisals, actuarial, investigations, and other expenses, fees, and disbursement that may be determined by the court as necessary for a spouse to be enabled to defend or carry out one of the proceedings or actions described here.

The Law also provides that the court may direct a spouse or parent to pay counsel fees in a proceeding to modify or annul a judgment or order for custody or maintenance, child support or visitation or upon request by writ of habeas corpus concerning custody, visitation or maintenance of a child.

It further states that in any proceeding or action to require payment of a monetary sum required by Court order or judgment to be paid in an action for separation, divorce, annulment or nullity declaration of a voided marriage. In the case of any other enforcement proceedings require either spouse may be required, by the court discretion, to pay the expenses of the other spouse who is bringing the action. This section of the law applies to actions or proceedings brought to force payment based on an application for sequestration, security, money judgment or contempt.

Enforcement Proceedings

The Court can require a spouse to pay attorney fees that are reasonable as well as disbursements from a proceeding to obtain or enforce an order of protection. Lawyer’s fees and disbursements can also be awarded to a person attempting custody decree enforcement from different state. These fee awards are stipulated under various parts of the Uniform Child Custody Jurisdiction Act and, under some circumstances, in contempt of court proceedings in which a party is accused of failing to comply with a non-monetary order.

A compulsory award of counselor’s fees is provided for in certain types of enforcement proceedings. The Law states that in a proceeding or action involving failure to obey a court order that compels payment of distributive award, maintenance, or support, if finding that the failure to pay was intentional, the court will order that the respondent pay attorney fees to the attorney of the petitioner.

Leveling the Field in the Courtroom

Poverty or destitution is not a requirement for an award of legal fees. The court, in using discretionary authority to grant attorney’s fees, must review both parties’ financial circumstances together along with the all the other case circumstances, including the merit of the relative positions of both parties.

Whether or not the court grants a counsel fee award, is a matter of discretion, to be exercised in appropriate cases, to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance or by prolonging the litigation.

Do you qualify?

To find out if you might qualify for an attorney fee or expense award in your case, contact the law office of highly experienced divorce lawyer Ingrid Gherman by calling (212) 941-0767 or send the on-line form.