Attorney’s Fees

Under New York law, a court can direct either spouse to pay attorney’s fees, and expenses for expert fees to enable the other spouse to maintain and defend the divorce action. The court, in awarding such fees must consider the circumstances of the case and of the spouses with an eye toward making sure each spouse is properly represented.

In determining whether to award attorney’s fees, a court will consider:

• income and asset disparity between the spouses;
• necessity and nature of the legal services rendered;
• value or services rendered and reasonableness of the amount requested;
• whether the case was pursued in good faith;
• complexity of the case and results achieved; and
• whether either party’s actions delayed the case.

A court may also assign an award for attorney’s fees a spouse had to pay in order to enforce any order issued by the court in a divorce action, including maintenance, child support, visitation, distributions of property, etc.  If the court finds the other spouse purposefully failed to obey any of these orders, it will automatically award attorney’s fees to the party trying to enforce the order.

If a spouse fails to obey a fee order, the other spouse may seek enforcement in several ways:

• The spouse can seek an order of “sequestration.” When a court sequesters the personal and real property of a spouse, the title to that property is placed in receivership and any rents or profits from the property will be applied to the fee award.
• The spouse can request a judgment for the amount owed. This judgment is enforceable in any manner allowed by New York law, including wage garnishment, which is not limited to the 10% wage garnishment for civil judgments.
• If the award is not otherwise enforceable as described above, the spouse entitled to the fee payments can seek to hold the defaulting party in contempt of court, which could result in the defaulting spouse being sent to prison.

Legal Editor:  Elliot Polland, April 2015