While many people financially plan for their families’ future, be it: the purchase of a home, college, retirement, etc., most people do not financially plan to fund a divorce action. Unfortunately, unlike the ability to defer the purchase of a home, college, or retirement, once a divorce action is commenced, the cost is unavoidable and often ongoing. Furthermore, in order to retain a matrimonial attorney, a lump sum initial retainer payment will be necessary.
Fortunately, the law provides protection for the non-monied spouse during a divorce. There is a “rebuttable presumption” in the law that provides that the monied spouse should be made to pay or contribute to the legal fees of the non-monied spouse. This is meant to allow both parties to litigate on equal footing, and to prevent the wealthier spouse from exerting financial pressure on the other during the litigation. A written application to the Court, setting forth the disparity in the parties’ incomes, will often be made early in the litigation, reserving the right for the non-monied spouse to request an additional legal fee award if necessary.
While the law provides protections regarding the non-monied spouse’s legal expense, it also recognizes that there are circumstances when the cost of litigation is significantly increased by the frivolous and dilatory conduct of the non-monied spouse. In those instances, the Court will utilize its discretion to determine an appropriate award, or may even deny the application entirely depending on the misconduct. Thus, merely being the non-monied spouse is not the end of the story.
Common SENSE dictates that the cost of a divorce is dependent on, among other things, a party’s willingness to negotiate a resolution in good faith. Thus, the best way to avoid significant legal expense is to listen to your attorney; do what is required by the court; and attempt to get through your divorce as amicably as possible.