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In most divorce actions, the court will be mindful that there should be a level playing field in the sense that one side is not at a disadvantage because they can not afford to hire counsel to represent them throughout the divorce action. While this seems, ideal this may not always be the answer in each case.

If the case has begun, your lawyer may ask the monied spouse for some money to support the non-monied spouse during the pendency of the action. If the monied spouse refuses, then your attorney may have no other choice but to make a motion for counsel. Applications for the award of counsel fees may be made at any time or prior to a final judgment. Each party, along with their attorney will file an affidavit with the court which will detail the financial agreement between the party and their attorney. Typically, these affidavits include the amount of the retainer, any bills paid and owed, hourly amount charged by the attorney and any expert funds or additional amounts to be paid.

Under New York law a court can direct either spouse to pay attorney and expert fees to the other spouse that are necessary to enable the other spouse to defend the action. When fashioning a award, the court will consider income/asset disparity between the spouses, necessity and nature of the legal services rendered, whether the case was pursued in good faith, complexity of the case and results achieved and whether or not either party delayed the case.

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