Legal costs associated with divorce are an expensive part of its overall costs, and clients often wonder whether or not they can force their spouse to cover those fees as part of the divorce settlement agreement.
As a general rule, each party is responsible for paying their own attorney fees during a divorce in New York; however, there may be exceptions and circumstances which make this less clear cut. This article will investigate these factors to help determine who pays.
Prenuptial and Postnuptial Agreements
Prenups are financial blueprints designed to determine asset distribution in the event of divorce, and are often enforced by New York courts upon full financial disclosure and voluntary participation by both parties. It is vitally important that an experienced family law attorney review any such agreement to ensure it fulfills essential requirements.
Prenuptial agreements provide details regarding how assets and debts would be divided in the event of divorce, including how retirement accounts and personal property would be distributed. Couples can also include clauses regarding spousal support, child custody arrangements and visitation schedules although courts will ultimately resolve such matters depending on prevailing circumstances at separation/divorce proceedings.
Postnups, on the other hand, are similar to prenuptial agreements but entered into post marriage or civil partnership. A postnup outlines how assets and debts would be split in case of separation or divorce to protect inheritances, provide for stay-at-home spouses, establish ownership of businesses or repay parental gifts; potentially helping salvage relationships as a whole.
Spouse’s At-Fault Behavior
At times, one spouse may engage in behavior so severe that an aggrieved party seeks an at-fault divorce. A judge may rule that this bad actor should cover some or all of their legal fees as compensation to their spouse.
Fault-based grounds for divorce include adultery, mental or emotional abuse, physical violence and extreme cruelty. A spouse engaging in any of these behaviors may attempt to prevent a court from awarding their divorce by creating various defenses such as condonation, connivance, recrimination or provocation.
Courts often reward spouses who are willing to settle their differences as this reduces court caseload and saves both parties time and money. Conversely, judges sometimes order spouses who pursue matters needlessly through trial or engage in misconduct such as concealing assets to cover for attorneys fees for the other spouse; this helps ensure an imbalance doesn’t tilt the balance of power unfairly in the divorce proceeding.
Court Discretion
In many divorce cases, judges will make the discretionary decision that one spouse pays the other’s attorney fees; this depends on numerous factors and must be evaluated individually.
One factor to be taken into account may be differences in each spouse’s annual earning power. If one spouse makes significantly more than another, their lawyer might file a motion asking the court for payment of legal fees for both sides.
Judicial discretion can be an invaluable asset in courts, but its use must be used responsibly and should never be exercised arbitrarily by judges as this could give rise to grounds for appeal.
Winter & Grossman can help you make an effective argument in favor of counsel fees awards, so contact us to discover how we can assist in your case. Our attorneys have years of experience navigating through complex divorce proceedings. Let us show you what we can do!
Financial Capability
Legally speaking, financial capacity refers to one’s abilities in managing their estate and finances – and serves as the basis for conservatorship determinations1.
But performance and judgment aspects of financial capability are distinct; for example, someone living with Parkinson’s disease dementia or early FTD might retain financial performance skills (such as counting coins/currency or conducting cash transactions) but lack the vital judgement to spend within their means or protect themselves and their self-interests.
As regards who pays your divorce lawyer, much will depend on your unique situation. For instance, if you earn significantly more than your soon-to-be ex partner, filing a motion with the court to have them cover your attorney fees may work – ultimately though, decisions will be based on factors and principles such as fairness and justice – Winter & Grossman attorneys can help determine who covers these fees during a divorce proceeding.