Articles on New York Divorce Law

The Law on Counsel fees in divorce and Child Custody cases in Manhattan and in all other cities in the First Department of the State of New York

Here is the state of the law as to counsel fees in Divorce and child custody cases.  The Courts are designed to not permit an unfair playing ground when it comes to a huge disparity in wealth between spouses. Accordingly, a non-monied or spouse with low income may apply for counsel fees against the other spouse in a divorce action in New York State under the following circumstances’ set forth in Domestic Relations Law Section 347(B). This is the same as where a spouse’s wealth vastly exceeds the other spouse‘s wealth because the Court wants everyone to be adequately represented. When you make an application for counsel fees there are certain legal requirements and documents that must be attached to the application so check with a New York divorce lawyer before filing any such application to ensure it is complete. .

Pursuant to DRL Section 237 (B):

            “….upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case  and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements, or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel's own name.

Also, see the below case citation.

In the First Department case of Brookelyn M. v. Christopher M., 161 A.D.3d 662 (2018) the Court held, in pertinent part, that “….The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition (O’Shea v. O’Shea, 93 N.Y.2d 187, 193, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999] ); see Gottlieb v. Gottlieb, 138 A.D.3d 30, 25 N.Y.S.3d 90 [1st Dept. 2016], lv dismissed 27 N.Y.3d 1125, 36 N.Y.S.3d 880, 57 N.E.3d 73 [2016] )…..”

Article by New York Divorce Lawyer Lisa Beth Older