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Brooklyn Family Law, Blog

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Divorce Action. Attorney Fees, Will My Spouse Pay?

Divorce Action. Attorney Fees, Will My Spouse Pay? Brooklyn Law PracticeThere are circumstances when a Court will award attorney fees or interim attorney’s fees in a divorce action. The general premise in awarding attorney fees is that the Court will act to “even the playing field” financially so that both parties can protect themselves in a divorce. Generally, the “non-monied” party seeks interim attorney’s fees, costs and expenses from the monied party. This has nothing to do with who did what to whom. Nothing to do with behavior of one party toward the other. Nothing to do with who started the action. Awards of legal fees and expenses are only about the finances of the parties and the ability or inability to pay reasonable and necessary legal fees and expenses in a divorce action.

The method of obtaining interim attorney’s fees, fees to carry on during the divorce action, is to bring a motion. A motion is the way we ask the Court for things that we want or need before a trial decision is made, things that have to happen during the time the divorce action is pending. A motion is a specific set of papers that have to be drafted to show that the party looking for attorney’s fees is not in a position to be able to pay the fees themselves and, therefore, would be without counsel to bring the action or defend it if not for the award of legal fees and expenses requested. It also must be shown that the legal fees and expenses desired are reasonable and fair in view of the facts of this divorce action. Your attorney will prepare an affidavit for his or her own signature stating, generally, their level of experience in this divorce law, that they are up to date on the law involved in divorces, that their hourly rate is reasonable in your locale with someone of their experience in divorce actions and stating their expectation of the legal fees necessary to carry on this divorce action. There would also be a statement of legal fees and expenses incurred to date as part of your attorney’s affidavit. If the legal fee request is made at anytime during the action or at the end of the action, the billing statements have to be provided to the Court for them to make a decision.

If the person seeking fees has assets or resources from which they can draw the fees other than the other side, the Court may decide those other resources must be used before the other side has to contribute. This does not mean that at the end of the action, or at another point during the action, the Court might not find an entitlement to an award of interim or other attorney’s fees and expenses. That is the thing about divorce actions. Things can change from one moment to another because facts and circumstances change. Not getting attorney’s fees in one instance does not prevent you from getting them at another time during your divorce action.

Divorce Action. Legal Fees, Will My Spouse Pay? Brooklyn Law PracticeThere have been some laws enacted in the last couple of years that make Judges take these requests for interim attorney’s fees in divorce actions more seriously, mandating an award of attorney’s fees to the non-monied party. The problem lies in the fact that the amount of the award is left in the discretion of the Court. In response to the new laws, some Judges are only awarding minimal attorney’s fees, not what is realistically needed. Other Judges are acting to “even the playing field,” as is intended in divorce actions, by awarding reasonable attorney’s fees and expense expenses to be paid by the monied party.

An interesting fact is that someone asking for attorney’s fees will not be penalized on the request because they are unwilling to settle the action and want to go to trial, incurring greater legal fees. A court cannot be limiting legal fees awarded for the purpose of forcing a settlement. What will be called into question are any fees or actions that are not seen as reasonable under the circumstances of the case, not whether you want your divorce to go to trial because a settlement cannot be reached.

The simple answer to the question above is that if you do not have funds or assets from which you can pay legal fees and expenses, and you ask the Court for your legal fees, you will likely get an award of attorney’s fees and expenses. You may not get all of your legal fees and expenses you need, or it may not happen until the end of the divorce case. Because the amount is left to the discretion of the Court, you are at the mercy of the particular Judge assigned to your case as to how much of the legal fees and expenses you require is awarded to you in your divorce action.

Attorney Fees questions? Contact Brooklyn Law Practice or Renata Weissman for any questions about fee structures or costs associated with our expert legal representation Contact us today.