A concern that I am frequently asked about is who will pay for the divorce. Typically, one spouse has been a loving, caring partner who stayed home raising the children and taking care of the household. As a result, this person now lacks the financial resources to fully litigate their divorce. The question now becomes, is will this person be able to afford an attorney during the divorce? First, when a married couple begins the divorce process, generally they are divided into two categories, the monied spouse and the nonmonied spouse. As you might guess, the monied spouse is the spouse with the higher income and gender does not play a role in this determination.
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 shall be adequately represented. How does a court know to give the less monied spouse a counsel fee award? If you cannot agree, then a pendente lite motion must be filed. Granting this motion prevents an imbalance from affecting the proceeding’s outcome. It specifically protects one spouse from dragging litigation out in an attempt to drain resources and outspend their soon to be ex-spouse.
Should the monied spouse want to oppose the awarding of such fees, the onus is on them to show why such an award is unwarranted. In determining whether or not to grant attorney fees, the court should review the financial circumstances of both parties together with all the other circumstances of the case which may include the relative merit of the parties’ positions. The court will take into account (1) the parties’ ability to pay; (2) the nature and extent of the services rendered; (3) the complexity of the issues involved; and (4) the reasonableness of fees requested. The attorneys will file their respective retainer agreements with the court, outlining their fee structure as well as anticipated expenses. The granting of attorney fees falls within the sound discretion of the court.
Additionally, depending on the complexity of the case, the court will allow the non-monied spouse to return and request more money should the award be exhausted in the normal course of the litigation.