The behavior of the parties in a New York divorce or child custody matter will affect an award of counsel fees, if an application is made by either party, Normally the monied spouse will pay the majority of the other party’s expenses but there are exceptions to this rule. Each case is fact specific and the Court may consider many factors in fashioning an award, if at all.

In the 2018 First Department matter of M.M. v. D.M., 159 AD3d 562 both parties appealed from the lower court decision  as to counsel fees, and as to other issues, and made the Defendant Husband pay the Plaintiff wife 65% of plaintiffs.  In that case, it should be noted that the parties  spent Seven Million Dollars on counsel fees. The parties paid this out of marital liquid assets on hand. However, rather than make the wife all of her share from her part of equitable distribution the Court noted that the Husband had made a substantially larger salary than the wife.  The Court also noted that both parties engaged in needless litigation which might be why the Court did not award all legal fees against the husband who was perceived as the monied spouse for purposes of this determination.  That was a First Department case.

In contrast, there was a 2018 decision out of the Second Department as to the award of counsel fees. In the case of Greenberg v Greenberg, 2018 Westlaw 3041099 (2d Dept. June 20, 2018) the husband appealed a divorce judgment in the lower court on many issues, one of those issues being counsel fees. There, the Appellate Court held that the lower court properly awarded the Wife counsel fees of $75,000.00 where the husband’s “evasive and dilatory actions during the pendency of the action caused an accrual of fees.

In another case where the court took into account the bad behavior of a party during litigation, the Appellate Court upheld the Wife’s counsel fee award of 70% of her legal fees and took into account defendant’s unnecessary accrual of legal fees, wherein he changed lawyers no fewer than nine (9) times, never followed court orders and extended the trial needlessly with “belligerent” behaviors. Behan v. Kornstein, 2018 Westlaw 4223911 (1 st Dept. Sept. 6, 2018).

As a client, you are entitled to receive a bill from your attorney after sixty days. In the case of Greco v. Greco, 2018 Westlaw 2225194 (2d Dept. May 16, 2018),  where the husband appealed from the lower court order granting the Wife ($70,000) to her first attorney and ($37,500) to her second attorney and  $12,700 of expert fees, the Second Department in its ultimate discretion, ruled that it would reverse the award given to the first attorney because the first attorney did not bill his client every sixty days.  The higher court also reversed the expert fees since the expert did not provide the Court with his Affidavit per requirements set forth in Ahern v. Ahern, 94 AD2d 53, 58.

Compare this result with the result of the after trial case of Sheehan v. Sheehan, (2d Dept. May 9, 2018), where the Wife was awarded $25,000 in counsel fees.    With regard to the attorney fee award the Court determined that:  “Considering the parties’ relative circumstances and other relevant factors, the award of attorney’s fees to the plaintiff in the sum of $25,000 was inadequate.”

From the recent case law, then,  it appears that the Courts do favor an award of counsel fees where the facts so dictate.  For instance in the case of Greco v. Greco, 73 NYS3d 765 (2d Dept. May 16, 2018), the wife was granted  counsel fees after her appeal on equitable distribution portions of her case  of $12,000. The Second Department stated:  “Under the circumstances, we find no basis to disturb the award.”

As a practical matter, however, many divorce lawyers will require that each client be responsible for their own counsel fees since there is no guarantee that a lower court will award counsel fees that cover their full bill, nor is there a guarantee that the higher Court will affirm a lower court order.

In the Matter of Monique B. v. Anthony S., 2018 Westlaw 3232613 the First Department appellate Division held in 2018 that the attorney fee awarded in the lower court of $250,00  was inaccurate   “that inasmuch as respondent was found to have willfully violated a child support order the issuance of attorney fees was proper under Family Court Act §§438(b) and 454(3),” since the lower court has failed to consider “the parties’ ability to pay, the nature and extent of services rendered, the complexity of the issues involved, and the reasonable of the fees under all of the circumstances.” W1488759.1 ) 22 30 F.

Post judgment counsel fees may also be awarded in some circumstances, especially if the behavior of the party that is being charged is in violation of a court ordered parenting agreement.   In a post judgment  child custody case attorney’s fees may also be awarded. In the case of  Boukas v. Boukas, 2018 Westlaw 3451549 (2d Dept. July 18, 2018), the mother appealed a lower court decision that denied attorney fees where the Father was in contempt of Court for failing to abide by the parenting time access Order. There, the Second Department modified the lower court order and gave the wife a counsel fee award of $15,000, finding that the mother was  “was entitled to reasonable counsel fees in connection with this matter, as the plaintiffs conduct in violation of the stipulation of settlement caused these fees to be incurred…. An award of counsel fees in the sum of $15,000 is supported by the record.”

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