To paraphrase George Orwell, some spouses are more equal than others. The inequality in many marriages takes the form of a disparity in income or assets available to each spouse.
While the parties are happily married, this inequality may not be an issue. When a couple is going through a divorce, however, it can lead to one spouse being put at a severe disadvantage during the course of the divorce proceedings.
Perhaps the biggest disadvantage for a divorcing spouse lacking significant income or assets is the inability to pay for a divorce lawyer to protect their rights and advance their interests. On the other hand, the well-heeled spouse has the means to hire the best legal representation the other spouse could be left without any representation whatsoever.
Domestic Relations Law Section 237
New York law recognizes the unfairness of this situation. That’s why judges in New York divorce cases may require one spouse to pay for the other spouse’s attorney’s fees to ensure that both parties are adequately represented.
New York Domestic Relations Law Section 237 provides, in relevant part, that during a divorce proceeding:
“the court may direct either spouse… to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties.”
Leveling the Playing Field
One New York court, in the case of Prichep v. Prichep, discussed why providing for representation for the less affluent spouse was so important. The court said that an award of fees is:
“appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation. If the playing field were not leveled by an award of interim counsel fees, "a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior) matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis.””
Section 237 establishes a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. Where fees and expenses are to be awarded, they shall be awarded on a timely basis 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 prior to final judgment of divorce and need to be supported by:
- A signed statement of the applicant’s net worth
- A copy of the attorney retainer agreement
- A disclosure by the attorney as to whether anyone else promised to pay the applicant’s legal fees.
Clement Law: Experienced and Creative New York and New Jersey Divorce Lawyer
At Clement Law, we provide trusted counsel and effective advocacy to individuals in New York and New Jersey going through the transition of divorce. While thorough and aggressive, we help clients resolve their cases in novel and creative ways in order to minimize strife and reach a positive resolution. If you’d like to discuss any issues relating to divorce, please give us a call at (212) 683-9551 or fill out our online form to arrange for a consultation. We look forward to assisting you.