Who Is Responsible for Paying the Attorneys Fees in a Divorce?

By Michael DiFalco
Partner

Many divorcing couples in New York may assume that each spouse pays for their own divorce attorney, but this isn’t always the case. When couples negotiate the split of joint assets and property, one of the considerations is whether one spouse will pay the attorney’s fees for the other. 

Typically, New York courts rule for the spouse with more financial resources or a larger income (the “monied spouse”) to pay most of the legal fees.

As per New York Domestic Relations Law, this arrangement aims to give each spouse access to equal legal representation in a divorce and ensure that the one with greater means doesn’t have an unfair advantage over the other.

Considerations that Affect Division of New York Divorce Legal Fees

Some of the factors that the courts consider when determining who pays what include the overall resources of both parties. In high-asset cases, the courts may decide that each party has the funds to pay for their representation, even if an income disparity exists. However, they may advance funds to the party who is not in control of the assets to ensure that they are properly represented before the distribution of assets occurs.

In other cases, the court may look at one party’s willingness to settle when deciding whether both attorney’s fees will be paid for by one spouse alone. New York divorce courts try to encourage parties to settle the division of assets and custody without a trial, if possible, working through their respective attorneys or third-party mediation.

If one party is insistent on going to trial based on an unreasonable position, or if the parties cannot come to an agreement despite one being willing to settle, the courts may favor the more accommodating spouse.

Furthermore, if a judge determines that one party is attempting to delay the case out of spite or cause the other spouse to incur additional legal expenses, the judge may assign both lawyers’ fees to the obstinate spouse.

The courts frown upon any attempt at deliberate fee inflation. A judge may effectively penalize such behavior even if the attempt is made by the spouse who earns less (and therefore may have benefited from having the monied spouse pay their legal fees).

The reasoning behind this is to discourage one spouse from deliberately making the other pay high legal fees, such as delaying the process or making frivolous demands.

Will I have to pay my spouse’s legal fees for my New York divorce?

Each case is different, and several elements go into allocating payment of lawyer fees.

If your annual salary is substantially less than that of your husband or wife, your lawyer may file a motion to have your soon-to-be-ex pay for your lawyer fees. Conversely, if you make more than the person you’re divorcing, their lawyer may ask this of you.

There is a legal presumption that counsel fees should be awarded to the less monied spouse. It’s up to your divorce attorney to make a solid argument against having to pay for the other party’s fees. 

One of the best ways to avoid paying the legal fees of the person you’re divorcing is to ensure you aren’t doing anything malicious in the process, such as being uncooperative during mediation or asking for a trial when there aren’t contentious issues at play.

This doesn’t mean you shouldn’t fight for what you deserve, whether it’s a fair division of assets or extra time with your children. You have the right to have your familial and financial interests fairly represented.

Your divorce lawyer understands what could put you in a position to have to pay both sets of fees and will help you avoid making mistakes that could cause you to do so.

Getting Experienced Representation in Your Divorce Case

If you’re seeking a divorce in New York, you may have the option to have a higher-earning spouse pay your legal fees. New York divorces can be complicated, and you deserve to have experienced legal representation regardless of how much money you make.

We can help. Contact Aiello & DiFalco in Garden City, NY, to schedule a consultation with our experienced family law attorneys.

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.