In a divorce action, a Court may direct either spouse to pay counsel fees and expert fees directly to the attorney of the other spouse. In addition, in any application to enforce, annul, or modify orders such as orders for maintenance, child support, custody, and visitation, a Court may do the same. In all of these instances the Court is allowed to use its discretion to award such fees when justice requires and after taking into account the circumstances of the case and the parties, including the conduct of the parties.
Recently, in October of 2010, the legislature amended the law and included a mandate that creates a rebuttable presumption that counsel fees will be awarded to the “less monied” spouse. Generally speaking, the Court considers the spouse with the greater income, earning power, and assets as the monied spouse. Prior to the amendment, the burden was on the less monied spouse to prove to the Court why the monied spouse should pay their expenses and fees. Now, however, the burden is on the monied spouse to prove why he or she should not have to pay for the other party’s fees. The statute states that the Court “must seek to assure that each party will be adequately represented.” A major goal of this amendment is to assure that that the unequal financial circumstances of parties don’t determine the outcome of cases. For example, it is not fair for a party who makes significantly more money than their spouse to prolong a divorce case until the other spouse cannot afford to be represented by counsel anymore. With this in mind, the New York legislature also gave Courts the ability to award counsel fees and expenses to the “less monied” spouse at any time, even at the beginning of a case.
If you have any questions regarding legal fees and expert expenses call Danziger Legal PLLC and ask to speak to one of our attorneys.