Divorce in New York: Who Pays the Legal Fees?

A common issue of contention in New York divorce proceedings is the division of responsibility for legal fees. In New York, the spouse with more income and financial resources, also known as the “monied” spouse, typically shoulders the majority of this burden. Codified in New York Domestic Relations Law § 237, the purpose of this payment arrangement is the encouragement of equal legal representation for both parties to a divorce, regardless of income. In other words, it is intended to prevent the monied spouse in a divorce proceeding from obtaining a superior outcome to that of his or her partner due solely to financial considerations. When passing this law, the New York State Legislature expressed its desire that both parties to a divorce have the same options and opportunities.

Additional Considerations

Some additional issues that can affect the division of legal fees in New York include:

• Resources of the parties – Even when a disparity in income exists, courts are less likely to award legal fees if both parties have extensive resources. This is common in high-asset cases where both parties have the ability to comfortably pay legal fees despite a disparity in income.
• Willingness to settle – New York courts generally encourage the settlement of divorce cases whenever possible. Settlement not only reduces the number of court cases, but it often saves the parties involved time and money. Therefore, when deciding how to divide legal fees, it’s not uncommon for courts to favor the spouse in a divorce case who has demonstrated a willingness to settle. Conversely, the court often requires a spouse who unnecessarily takes issues to trial out of spite to pay the other party’s legal fees.
• Intentional fee inflation – Efforts to intentionally increase legal fees are frowned upon by the court. Such actions, even when undertaken by a lower earning spouse, will often result in added financial responsibility by that party. When a court determines that the party with less resources will be held liable for a percentage of the litigation costs, the purpose is to reduce the incentive of that party to unnecessarily prolong litigation. In other words, when a party is forced to shoulder some of the responsibility for legal fees, he or she often becomes less likely to engage in practices designed to raise such fees.

Legal Representation

In New York, divorce and legal separation are complicated processes. If you are considering pursuing either of these options, please contact an experienced New York family law attorney to discuss your options. At O’Connell and Aronowitz, our matrimonial and family law practice offers experienced counsel to both individuals and families. Our experienced New York family law attorneys have handled hundreds of cases involving complex custody, visitation, and support issues in many counties throughout New York State. Please contact us for a free initial consultation.