Divorce & Legal Fees: Who Pays?

A question often asked by divorce litigants in New York is whether or not one spouse will be responsible for the other's legal fees.

Under New York law, the spouse who has more income and/or resources (the "monied" spouse) is required to assist the less-monied spouse with their counsel fees. This is in order to level the playing field so that the spouse with more funds can't take advantage of the situation by paying for expensive attorneys while the less-monied spouse is forced to seek self or less qualified representation.

New York courts want both parties to a divorce to have the same options and opportunities. However, the percentage that the payor spouse is responsible for is often a matter of challenge and debate and is sometimes fought over even more than the issues of the divorce itself.

A number of recent cases have shown that, although the courts took a huge step forward in assisting less-monied spouses with respect to evening out litigation costs, there are limits to the generosity required of their soon to be ex. Where there is a disparity in income, the courts may be less likely to award counsel fees if both parties still have extensive resources.

This is typical in high-asset cases where, even if one spouse earns substantially more than the other, both have the ability to comfortably pay their counsel fees and neither has been deliberately extending litigation (or both have been behaving badly and are being held jointly responsible). However, it is essential to remember that the less-monied spouse cannot expect that their wealthier ex to stand in as a "blank check" provider who will cover all their litigation expenses.

Generally, New York courts will try to encourage settlement of cases. It is more efficient for the court system, more efficient for the parties, and less expensive for everyone involved. Therefore, the spouse who has been more open to settlement and not acted to prolong the litigation is more likely to receive counsel fees (if they are the less-monied party) or to be off the hook for some or all of their ex's fees (if they are the monied party) than the spouse who unnecessarily takes issues to trial or deliberately prolongs litigation out of spite.

Until recently, after New York law was amended to require that the monied spouse help pay for the less-monied spouse's litigation expenses, the "poorer" spouse had every incentive to take things to trial. If they had no "skin in the game," or, in other words, a financial stake in having to pay to keep the case going, they could run up a giant bill to punish their ex. As a result, courts have now been stepping in more frequently to put the brakes on that type of behavior.

In one recent case where the less-monied spouse had been consciously driving up litigation costs, the court required them to pay their own litigation expenses from a certain date onward. When a court determines that the party with less resources will be liable for at least a percentage of the litigation costs, they are ensuring that the less-monied spouse will have "skin in the game." In other words, once a party is made aware that their higher-earning ex won't be covering all of their litigation costs, they are less likely to engage in prolonging or frivolous tactics.

However, this can be an issue where neither spouse has extensive income. In many of the precedent-setting cases regarding counsel fees, both parties had hundreds of thousands or even millions of dollars at their disposal. Where the parties are each making under six figures, determining who pays how much of each other's counsel fees can get more complicated. In such cases, a divorce can consume the marital assets, which may have been protected if the parties had been more flexible with each other.

In order to avoid overextending themselves financially, parties of all income levels should be open to working out settlements with the guidance of their attorneys, and try to avoid trials and unnecessary discovery or other motions whenever possible.

That said, if your spouse is engaging in delay tactics, or you are of substantially lesser means than they are, if you keep a level head, as shown above, New York courts and New York divorce law with respect to counsel fees are more in your favor than ever before.

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