As a result, they lack the financial resources to fully litigate their divorce. The question becomes, is all lost?! Not necessarily. First, when a married couple begins the divorce process, generally they are divided into two categories, the monied spouse and the nonmonied spouse. As you might guess, the monied spouse is the one with the higher income. You will notice, gender does not play a role in this determination.
Domestic Relations Law §237 provides that there “shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Courts generally attempt to ensure that each party shall be adequately represented and that where fees and expenses are to be awarded, they are to be made in a timely fashion. How does a court know to give the less monied spouse this award? A pendente lite motion must be filed. Granting this motion prevents an imbalance in the parties’ resources from affecting the proceeding’s outcome. It specifically protects one spouse from dragging litigation out in an attempt to drain resources and outspend their soon to be ex-spouse.
Should the monied spouse want to oppose the awarding of such fees, the onus is on them to show why such an award is unwarranted. Granting attorney fees falls within the sound discretion of the court. In determining whether or not to grant attorney fees, the court should review the financial circumstances of both parties together with all the other circumstances of the case which may include the relative merit of the parties’ positions. The court will take into account (1) the parties’ ability to pay; (2) the nature and extent of the services rendered; (3) the complexity of the issues involved; and (4) the reasonableness of fees requested. The attorneys will file their respective retainer agreements with the court, outlining their fee structure as well as anticipated expenses.
Due to the importance of obtaining fees in a timely matter so as to prevent the monied spouse from wearing down a nonmonied spouse on the basis of sheer financial strength, the courts will generally not defer ruling on this type of motion. Additionally, depending on the complexity of the case, the court will allow the non-monied spouse to return and request more money should the award be exhausted in the normal course of the litigation.
LEARNING POINT: Seek a long island divorce attorney quickly once beginning the divorce process. The attorney will be able to quickly ascertain your potential recovery or liability for attorney’s fees. Filing and or opposing a pendente lite is crucial in the protection of your assets.