ATTORNEYS' FEES IN NY DIVORCE CASES
New York Domestic Relations Law permits the Court to award counsel fees to enable a spouse to pursue an action for divorce or defend against an action for divorce. The determination as to whether the Court should award counsel fees is discretionary and not mandatory. A spouse does not have to be indigent nor do they have to establish poverty in order to receive an award of counsel fees. The purpose of awarding counsel fees in a matrimonial proceeding is to ensure the litigation is shaped not by the power of the bank roll but by the power of the evidence.
There is a rebuttal presumption that counsel fees should be awarded to the less monied spouse. The Court seeks to assure that each party is adequately represented and that where fees and expenses are to be awarded, they are awarded on a timely basis. Temporary awards during a pending divorce action are awarded to enable adequate representation from the commencement of the proceeding until the conclusion of the action. Applications for an award of attorney fees may be made at any time or times prior to a final judgment of divorce.
In the determination of counsel fees the New York Court must consider the following factors: (1) the nature and extent of the services rendered; (2) the actual time spent; (3) the necessity for the services; (4) the nature of the issues involved; (5) the professional standing of counsel, including background and experience; (6) the results achieved; (7) the financial circumstances of the spouses; (8) customary fees charged by other attorneys for similar services; and (9) a spouses' obstructionist tactics.
It is also appropriate for the Court to consider each spouse's settlement demands and negotiation position in determining the appropriateness of a counsel fee application.
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