I HAVE NOT WORKED IN YEARS BUT AM NOW GETTING DIVORCED? CAN I AFFORD AN ATTORNEY?

A concern for many is who will pay for the divorce. This is true, especially if one spouse has been staying at home to raise the children and take care of the household.  As a result, this spouse now has a lack of financial resources to litigate their divorce.  To begin, when a married couple begins the divorce process, generally they are divided into two categories, the monied spouse and the nonmonied spouse.  

In New York, Domestic Relations Law §237 provides that there “shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.”  Courts generally attempt to ensure that each party is adequately represented and that an award of legal fees and expenses are timely made.  The court will award attorney fees if the parties cannot agree as to the amount of attorney fees to be paid after a pendente lite motion has been submitted. If a pendente lite motion is filed, the attorneys will then file their respective retainer agreements with the court, outlining their fee structure as well as anticipated expenses along with a Statement of Net Worth and tax returns. The granting of this motion prevents an imbalance in the parties’ resources from affecting the outcome of litigation. 

Should the monied spouse want to oppose the award of legal fees, the onus is on him/her to show why such an award is unwarranted.  Granting attorney fees falls within the sound discretion of the court.  Of course, try to work this out with your spouse, it will save you time, money and additional stress and pressure.