Complex Divorce? Some Settlements Include Attorney Fees Covered by Future Ex-Spouse

A complex divorce typically involves the division of a significant amount of assets and debts. Due to this, your divorce can take a considerable amount of time to be finalized. When other factors, such as spousal maintenance (alimony), child custody, and child support, are added to the mix, your divorce will create significant legal fees. Those legal fees can themselves become an issue in your divorce case. 

You can seek to have your spouse pay all or some of your legal fees. Your spouse might also seek the same from you. Attorney fees not only can be awarded in a divorce, but also in cases dealing only with the establishment or enforcement of child custody, child support, spousal maintenance, or property distribution

Factors Influencing Payment of Legal Fees

New York state has specific factors a court must weigh when considering a request for payment of legal fees. These include:

  • The disparity that exists between the spouses when it comes to income and assets. Either one can be determinative, or a look at the combination of the two may be decisive.
  • The type of legal services that are needed and how necessary they are. In a complex divorce, each spouse will need a highly skilled attorney who can address the issues involved.
  • The actual value of the legal services involved and how reasonable the cost is that is being requested. So, if you have an attorney with an over-inflated bill, the court could decide to award only the portion of it that seems reasonable.
  • If the case was brought in good faith. If the non-moneyed spouse brings the couple to court for something such as child custody modification without any real basis simply to cause problems, the court could decide not to entertain a request for legal fees brought by that non-moneyed spouse. On the other hand, if the moneyed spouse brings a frivolous case to the court, the court could rely on that to award the non-moneyed spouse with attorney fees.
  • How willing each spouse was to reach a settlement. Courts encourage settlement, and if one spouse was open to settlement, that could sway the court to issue an award of attorney fees to that spouse.
  • How complicated the case is and what legal counsel was able to achieve. The more complex the case, the more likely it is attorney fees will be awarded. And if the non-moneyed spouse wins the case, the court is more inclined to award them attorney fees.
  • Actions by either spouse that delayed the case. Time is money, so anything a spouse does that results in a delay in the case moving forward could affect an award of attorney’s fees. If the non-moneyed spouse uses delay tactics, the court could reduce or deny an award of attorney fees. On the other hand, if the moneyed spouse creates delays moving forward, this could be a basis for awarding attorney fees to the non-moneyed spouse. 

Note that while an award of attorney fees is given to the non-moneyed spouse in most situations, the court could decide to award attorney’s fees to the moneyed spouse if the non-moneyed spouse’s behavior warrants this kind of sanction.

Payment of Other Fees

In addition to attorney fees, the court can order a spouse to pay for the experts the other spouse needs for the case. This could include financial advisors, business evaluators, accountants, child custody evaluators, appraisers, and medical experts. Any expert that is reasonably needed to put forward that spouse’s case can be considered for reimbursement by the court.

Enforcement of Attorney Fee Orders

A court order directing a spouse to pay attorney fees is an enforceable order. If a spouse is ordered to pay attorney fees and fails to, the other spouse has a variety of options they can request:

  • Sequestration. The court can take ownership of property owned by the non-paying spouse and the property can be sold or its profits withheld to be used to pay the fees that are owed.
  • Judgment. The court can issue a judgment against the spouse who was ordered to pay attorney fees. A judgment can be enforced through a variety of methods, including garnishment of wages.
  • Contempt. Contempt of court is a last resort and could result in jail time. 

What These Rules Can Mean for You

There are a variety of takeaways to keep in mind from the New York rules about attorney fees.

  • If you are the non-moneyed spouse, you can seek high-quality legal representation you might otherwise not be able to afford and have a good chance that your spouse will be directed to pay for your legal fees. 
  • How you behave during the case influences whether you will have to pay or may be awarded attorney fees. If attorney fees are possible in your case, it’s important to keep this in mind and try to approach the case with a willingness to engage in settlement talks. It’s also crucial that you not take any actions that may be viewed by the court as delaying the case.
  • How serious your case is matters. If you and your spouse return to court over and over to litigate minor custody matters, the court could order the person bringing those frivolous cases to pay the other’s attorney fees. 
  • If you work with an attorney who inflates their fees to try to collect more from your spouse, you may end up having to pay some of those fees yourself if the court finds they are not reasonable. 
  • Even if you are the non-moneyed spouse, your behavior at trial could cause the court to require you to pay some or all of your spouse’s legal fees.

Legal fees in a divorce or related case can cost tens of thousands to hundreds of thousands of dollars, depending on the case. Understanding your rights when it comes to attorney fees can allow you to make informed choices throughout your case. 


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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