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What Determines Who Pays the Legal Fees in a Divorce?

By Michael DiFalco

A common issue in many New York divorce cases is determining how legal fees are paid. Even in an uncontested divorce, divorcing from your spouse can be a major expense. This is why New York law is designed to provide relief for spouses who may be at a financial disadvantage. 

Courts when dealing with counsel fees in a divorce are supposed to “level the playing field”.

If you’re considering divorce in New York, it’s essential to understand the courts’ power to direct how legal fees are paid. Depending on your circumstances, this may become an issue of contention.

New York’s Domestic Relations Law 

New York’s Domestic Relations Law allows a divorcing party to recover legal fees. This practice helps ensure litigation is conducted on a level playing field by both spouses. As such, the law is designed to promote equal representation in a divorce. 

Before the state enacted these reforms, it was typical that one “monied” spouse could hire an expensive legal team while the other was left to bear the burden of proceeding with limited resources. 

With new laws in effect, New York divorce proceedings are much fairer and ensure each spouse has access to the same legal options. Whenever one spouse requires legal fees to be paid, they can submit their request through the courts if the other party declines to contribute to their counsel fees voluntarily.

How Legal Fees Are Determined by the Courts

Any party may request for legal fees to be paid by their spouse in a divorce, separation, or annulment. Because every divorce is unique, the court’s decision varies from case to case. Generally, many factors are considered by the court. After a party presents their case, judges issue a ruling to determine if attorney fees will be paid.

Some of the most critical elements the courts consider include:

  • Each spouse’s financial situation, especially their income and available assets
  • Willingness to settle the divorce
  • The complexity or simplicity of the issues involved
  • Conduct of each party
  • Reasonable services provided by legal counsel

In many cases, the higher-earning spouse may be required to cover a percentage or all of the other party’s attorney fees. A detailed financial disclosure, proof of income, and an explanation of the issues involved in a divorce and the positions taken by each party are often required to demonstrate the economic disadvantage which justifies an award of reasonable counsel fees. The goal of comparing finances is to ensure that a divorce is decided on merits alone.

Judges may also look at the legal services sought by the spouse. The courts can deny a request whenever a party racks up a substantial legal bill with unnecessary services. Whenever legal fees are considered, each party should act in good faith and manage their divorce process reasonably to avoid unjustified litigation.

Similarly, judges will look at the conduct of each party in cooperating with the divorce proceedings, especially regarding custody and parenting issues, temporary support issues, discovery and financial disclosure. Generally, courts favor individuals who demonstrate a willingness to cooperate and take reasonable positions, respond to discovery requests, and not increase the tension involved in the divorce. Whenever someone engages in delay tactics or takes unnecessary issues to trial, this can and should affect the amount awarded for attorney fees. 

Amounts Awarded for Spousal Legal Fees

Judges have full discretion to decide the total sum awarded. Although you may receive an award for legal fees, this may not always cover the entire amount requested. Judges are supposed to make sure that both parties have some “skin in the game”. 

Judges can direct a spouse to pay only a percentage of attorney fees based on figures they determine to be appropriate. A dedicated divorce attorney can help review your situation and develop a plan of action to seek maximum compensation for your legal fees.

In some situations, judges can also order bad-faith spouses to pay counsel fees to the other party whenever their actions or unwillingness to settle results in excessive fees, or if a party has violated court orders or otherwise been held in contempt of court. Therefore, it’s critical to consult with an experienced divorce attorney who can help ensure the process is carried out smoothly. 

Aiello & DiFalco represent family law matters in Garden City, NY. If you’re thinking about divorce, contact us today for a free case review.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.