If your spouse makes, controls, manages, and tracks all the money spent in your marriage, you may feel as though there is no way for you to get a divorce because you can’t access money to pay for an attorney, and you know that you absolutely have to have an attorney.
It can be an overwhelming feeling to realize you are without the financial resources to get the legal representation you need. The prospect of having to stay in an unhappy marriage because you have no other economic recourse can be crushing. However, there is a path forward and a way to have a good attorney and obtain your divorce without having to fund it yourself.
Interim Award of Counsel Fees
New York state law has a provision that ensures that non-monied spouses will have access to counsel in their divorces. Domestic Relations Law 237 specifies that non-monied spouses are entitled to an award of interim counsel fees once a divorce case has begun. There is no need for a non-monied spouse to provide the money to hire or retain an attorney.
A motion simply has to explain the circumstances and ask the court to pay the attorney fees. The law goes so far as to say there is a rebuttable presumption that these fees will be paid by the monied spouse, which means that unless the monied spouse can convince the court otherwise, they will be held responsible for their spouse’s lawyer fees. The law permits the non-monied spouse to continue to seek payment for attorney costs throughout the divorce process, as many times as is necessary.
If you already have an attorney, you will be required to file an affidavit with the court stating the amount of retainer you paid and any bills you have paid yourself, the attorney’s hourly rate, and the amounts due. If you have not yet retained an attorney, you can file an affidavit of your financial situation detailing your assets and earnings, stating that you cannot afford to hire your own attorney. The court will then direct your spouse to pay your attorney fees throughout the case.
Definition of Non-Monied Spouse
The law does not give a definition for what constitutes a non-monied spouse. A person with significant assets worth far less than the assets controlled by the monied spouse likely would not qualify. A spouse with considerable marital assets in joint names could be considered to be non-monied if the other spouse retains almost complete control over the access and disposition of those assets. If a monied spouse has substantial separate assets and the marital assets are small, and the non-monied spouse has few separate assets, this would also be a situation where they would qualify for counsel fee awards.
In addition to lawyer fees, the monied spouse can also be required to pay for any and all expert costs that the non-monied spouse’s attorney needs to incur such as forensic accountants, custody evaluators, appraisal fees, and actuarial fees.
To determine if expert fees should be paid by your spouse, the law requires the judge to consider the following four factors:
- The difficulty involved in locating and valuing marital assets
- The nature of the marital assets involved in the case
- The non-monied spouse’s financial situation
- The services provided and the cost
Pitfalls to Be Aware of
While New York law is clear that the monied spouse should pay the non-monied spouse’s attorneys fees and costs, there are some pitfalls to be aware of. The first is that another section of state law allows a litigant to obtain a stay of funds they are ordered to pay if they appeal the order. So, your spouse’s attorney could appeal the award of attorney’s fees and be able to stay (or halt) the order that your spouse has to pay your lawyer fees while the appeal is being held. This could mean that although the court has ordered your spouse to pay your fees, they won’t have to pay anything until the appeal is heard, which could take many months. In the meantime, there would be no funds to pay your attorney.
Another concern is that while courts are quick to award interim counsel fees, this is often done without prejudice and is subject to reallocation. This means that at the end of the case, the court could reverse itself and require the non-monied spouse to repay those fees. The purpose of this is to ensure the non-monied spouse does not run up excessive attorney and expert fees to reduce the monied spouse’s assets. It is also a way to take a bite out of the marital assets awarded to the non-monied spouse in the final judgment.
The cost and effort necessary for a non-monied spouse’s attorney to seek orders awarding counsel fees is another consideration to keep in mind. Work is required upfront without pay and with no guarantee of payment from the monied spouse to ask for the award of counsel fees (and remember, the divorce has to be filed for the motion to be made for counsel fees, so there is also work involved in beginning or responding to the initial filings).
The case becomes even more complicated by the additional motions, hearings, appeals, and legal documents required to resolve the payment issue. Some attorneys are reluctant to take on clients in these situations because it can be challenging to get paid.
The bottom line is that if you do not have significant assets and your spouse does, or if your marital assets are large but your spouse completely controls them and does not allow you access, you are entitled to have your spouse pay for your attorney and experts you need to prove your case.