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Paying For Your Divorce

Contested divorces are undoubtedly expensive. If you are the non-monied spouse, the payment of legal fees in a divorce is a real concern, and the payment of even the initial retainer for an attorney is often obtained by incurring some form of debt.

Fortunately, the law provides protection for the non-monied spouse during a divorce. There is what is called 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 negotiations and the litigation in general.

Often times, an attorney representing the non-monied spouse will submit a written application to the court for an interim (during the pendency of the action) counsel fee award early in the litigation. Upon the submission of financial (tax returns, Net Worth Statements, etc) and other information, the Court will render a decision after the other side has had a chance to oppose the application, and you have a further opportunity to respond to the opposition.

While a court may not initially grant your request for the entire amount of interim legal fees you request, a non-monied spouse will generally get some legal fee award. Furthermore, if necessary, additional legal fees can be requested at a later date, during the action, if necessary, and/or in a final request at the end of the action.

While Courts will protect non-monied parties by granting legal fee awards, they also recognize that there are circumstances when the cost of litigation is significantly increased by the frivolous and dilatory conduct of the non-monied spouse. If the non-monied spouse is: taking unreasonable positions, not cooperating in the proceedings or engaging in any such conduct which causes delay or additional issues in the litigation, it is certain that the court will take this into account when considering a counsel fee award (if any). Thus, merely being the non-monied spouse is not the end of the story.

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