It is very often the case that one spouse is the primary wage earner during the marriage and provides for the financial needs of both spouses. When divorce arises, the non-monied spouse can feel helpless, not knowing where the money will come from to initiate or defend a divorce action. A litigant may have no income, no earning potential, and no savings. Yet lawyers cost money and to properly prosecute or defend a matrimonial action, it really does help to have an attorney. So, what can be done?
The law protects individuals without funds so that they can pay for matrimonial action legal fees. How? By compelling the monied spouse to cover or contribute to those fees. Pursuant to Domestic Relations Law Section 237 (revised in 2010), there is a rebuttable presumption that the non-income earning spouse is entitled to have his or her fees covered by the other party to the action should the funds be available to the other party.
This means that the court should award counsel and expert fees to the non-monied spouse unless there is reason not to do so. The decision as to the award of counsel fees is a matter within the discretion of the court, and is controlled by the circumstances of each particular case. Courts will review the financial circumstances of both parties, as well as the other circumstances of the case. A counsel fee award is generally designed to redress economic disparity between the parties. (See Gluck v. Gluck decided by Justice Palmieri January 7, 2013.) What about spouses who have some but not a lot of money? A spouse does not have to be completely indigent to receive counsel fees. (De Cabrera v. DeCabrera-Rosete, 70 N 2d 879, Court of Appeals 1987.) The award is simply intended to level the playing field between the spouses.
Importantly, an application to the court for legal fees can be made at the time a divorce action is filed. So, an attorney can be hired to begin a divorce action and, with the action, simultaneously make the application for legal fees. The 2010 revisions to New York’s matrimonial law should serve to encourage those with substantially fewer resources than their spouse who seek to end a failed marriage that they should be able to obtain from their spouse funds necessary to cover the legal fees associated with divorce.